Enlarge / The lawyers are petitioning a court housed in the Phillip Burton Federal Building in San Francisco.Bloomberg / Getty Images News
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Two lawyers and legal researchers based at Stanford University have formally asked a federal court in San Francisco to unseal numerous records of surveillance-related cases, as a way to better understand how authorities seek such powers from judges.
This courthouse is responsible for the entire Northern District of California, which includes the region where tech companies such as Twitter, Apple, and Google, are based.
According to the petition, Jennifer Granick and Riana Pfefferkorn were partly inspired by a number of high-profile privacy cases that have unfolded in recent years, ranging from Lavabit to Apple’s battle with the Department of Justice.
As they wrote in their Wednesday filing:
Most surveillance orders are sealed, however.
Therefore, the public does not have a strong understanding of what technical assistance courts may order private entities to provide to law enforcement.
There are at least 70 cases, many under seal, in which courts have mandated that Apple and Google unlock mobile phones—and potentially many more.
The Lavabit district court may not be the only court to have ordered companies to turn over private encryption keys to law enforcement based on novel interpretations of law.
Courts today may be granting orders forcing private companies to turn on microphones or cameras in cars, laptops, mobile phones, smart TVs, or other audio- and video-enabled Internet-connected devices in order to conduct wiretapping or visual surveillance.
This pervasive sealing cripples public discussion of whether these judicial orders are
lawful and appropriate.
In their 45-page petition, they specifically say that they don’t need all sealed surveillance records, simply those that should have been unsealed—which, unfortunately, doesn’t always happen automatically.
Petitioners seek the unsealing of underlying materials only from cases where there is no longer any need for secrecy, e.g., the criminal investigation has terminated, the surveillance order (including any delayed-notice order) has expired, or charges have been filed.
These records are public documents and should be publicly docketed and unsealed unless good cause exists on a case-by-case basis for continued secrecy based on the facts and circumstances of the individual matter.
Granick is the director of civil liberties at the Stanford Center for Internet and Society and previously worked at Zwillgen, one of the law firms that represented Apple in the wake of the December 2015 terrorist attack in San Bernadino. Pfefferkorn is the Cryptography Fellow at the same Stanford group.
Both women have been outspoken on the issue of expansive government surveillance.
The petition has yet to be assigned to a judge, and as such, hearings have not been scheduled.