Late last year, a Seattle newspaper petitioned the court to unseal dockets related to electronic surveillance by law enforcement. The position was clear: the First Amendment provides citizens with a right to information, hence the presumption of openness that's supposed to govern court proceedings. The government has long argued the need to protect law enforcement means and methods outweigh the public's right to know, and has secured a lot of compliance from judges at all levels of the court system.
In recent years -- no doubt at least partially as a result of the Snowden leaks -- courts have begun pushing back. Warrant affidavits are receiving more scrutiny from some judges and litigation has resulted in courts agreeing to unseal large numbers of proceedings involving law enforcement surveillance tech.
The Seattle case deals with the same concern: law enforcement is increasingly deploying secretive tech and locking the public out of the discussion by sealing documents and dockets. The good news is the federal court presiding over the case agrees with the EFF and The Stranger, the Seattle publication that put the litigation in motion.
In response to The Stranger’s petition, the United States Attorney’s Office for Western District of Washington and the Clerk of the Court have launched a new pilot program for tracking these surveillance tools. The court is now collecting data each time one of these surveillance tools is used and will publish that data in semi-annual reports. These reports will include the case numbers and the principle crime being investigated every time the government asks to use one of these surveillance methods, giving the public in Seattle an unprecedented understanding of how investigators spy on Americans.
This isn't as broad as the unsealing ordered by the court following a lawsuit by Jason Leopold, but it's a start. It appears filings will still remain under seal, but at least the public will have some idea how often surveillance tech is deployed by local law enforcement as well as what case numbers to target in future First Amendment-based litigation.
The first report won't be available until 2020 and, unfortunately, won't be retroactive. It will only affect cases brought from 2019 forward. It also will remain in operation at the US Attorney's discretion, which means it could be shut down anytime after its two-year trial run.
But we'll take what we can get for now and hope the US Attorney sees the value of partial transparency, rather than just the limited downsides law enforcement will likely complain about repeatedly. It's a big win for The Stranger, which has been instrumental in exposing legally-dubious surveillance programs rolled out by the Seattle Police Department.
In 2013, Brendan Kiley and Matt Fikse-Verkerk’s reported on a then-secret wireless spying network that the Seattle Police Department (SPD) had installed in downtown Seattle. Six days after the story was published the department deactivated the network. In 2016, Ansel Herz uncovered a secret, and illegal, SPD software program that lets them snoop on people’s social media feeds.
This is the sort of thing that happens when the public is locked out of the conversation, whether it's by city government officials failing to fulfill their oversight duties or judges obliging law enforcement every time they ask for public courtroom filings to be taken out of the public's hands. Less transparency equals less accountability, and the government has repeatedly shown it will exploit holes in public knowledge to engage in shady surveillance tactics.