Exposing Secret Searches: A First Amendment Right of Access to Electronic Surveillance Orders
March 27, 2018 | 93 Wash. L. Rev. 145
Abstract: Although, as a rule, court proceedings and judicial records are presumptively open to the public, electronic surveillance documents are exceptions. Like ordinary search warrants, surveillance applications are considered ex parte. But court orders frequently remain sealed indefinitely, even when there is no basis for continued secrecy. Indeed, secrecy—in the form of gag orders, local judicial rules, and even clerical filing and docketing practices—is built into the laws that regulate electronic surveillance.
This Article argues that this widespread secrecy violates the First Amendment right of access to court proceedings and documents. The history of search and seizure shows that, far from requiring secrecy, searches and seizures were historically executed in public, with neighbors watching and even participating. Secrecy surrounding searches and seizures is a relatively new development, linked to the emergence of communications technology and laws governing the acquisition of customer records from third-party service providers. Transparency would play an especially positive role in this context because electronic surveillance is otherwise virtually insulated from public scrutiny: basic information about the scope of the government’s authority to conduct surveillance and data regarding the frequency with which it does so is largely unavailable to the public. Sealing also obscures the government’s interpretations of its own legal authority, as well as information about law enforcement technologies.
These twin arguments—historical and logical—establish a basis for courts to recognize that a First Amendment right of access attaches to surveillance materials after an investigation has concluded. While the government may have a compelling need for secrecy of surveillance materials in ongoing investigations, there is no government interest sufficiently compelling to warrant the sealing of tens of thousands of judicial documents long after an investigation has concluded.
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