Judge Orders Release Of Information On Cases Involving Electronic Surveillance

In a victory that's only sure to add more entities to the list of government agencies wishing Jason Leopold was dead, a federal judge has decided to roll back some of the opacity surrounding electronic surveillance.

US District Court Judge Beryl Howell said at a hearing Friday morning that absent an objection by government attorneys, the court would post to its website next week a list of all case numbers from 2012 in which federal prosecutors in Washington, DC applied for an order to install a pen register or a trap and trace device.

This is a response to a petition by Leopold and Vice to unseal court dockets containing electronic surveillance affidavits, orders, etc. The step forward towards more transparency is welcome news, but it appears the wheels of justice aren't grinding any faster. This petition was submitted to the court in 2013.

Default mode for nearly any case involving law enforcement surveillance is pitch-black darkness. The government asks for cases to be sealed with alarming (and annoying) frequency, often claiming the potential exposure of law enforcement means and methods would be detrimental to the business of catching criminals. This makes no sense considering the technology used is decades old and the methodology has been common knowledge for nearly the same length of time.

And yet, these requests are granted more often than not. Howell's district (Washington DC) presides over an extremely high percentage of sealed cases.

That traditional aversion to court secrecy has been overcome in the last few decades. To take but one example, the case name In re Sealed Case first appeared in 1981; it is now the most common case name on the D.C. Circuit Court of Appeals docket.

That may be changing. In addition to cutting loose a list of 2012 case numbers, Howell is looking to prevent the government from relying on the DC district to rubberstamp its secrecy requests.

At Friday's hearing, Howell approved a plan that would lay the groundwork for the systematic review and unsealing of a large volume of federal court documents related to the government's use of electronic surveillance.

This is a process that should have been put into place years ago. And, if implemented, should be spread to all federal court districts. The government asks for dockets to be sealed because it doesn't want to tip off those who are being surveilled. Fair enough, but that doesn't explain why dockets remained sealed for months or years after investigations have been closed.

Howell is asking for a response from government officials, so there's a chance it will still be months or years before the list of 2012 sealed cases is released. But if the review process changes (i.e., there actually is one), then indefinite docket sealing will no longer be the presumption.