Seattle Newspaper Files Petition To Peel Back Layers Of Court-Aided Surveillance Secrecy
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A Seattle newspaper is looking to bring some more transparency to law enforcement surveillance tactics. Working with the EFF, The Stranger is making a First Amendment argument about sealed court dockets. The government loves to seal dockets related to criminal cases, especially if agencies have deployed certain surveillance tech or have issued warrants to compel tech company assistance under the Stored Communications Act. (It also loves to shut tech companies up by appending indefinite gag orders to warrants and subpoenas.)And courts, for the most part, have been playing along. The DC District is notorious for this, thanks to it being home to many DOJ prosecutions. The Stranger's petition [PDF] asks the court to reconsider this constant, usually indefinite sealing of dockets, arguing that this secrecy runs contrary to public interest.Petitioner seeks access to these judicial records to better understand and inform the public about how the government is using current laws to gain access to individuals' private information, including how often law enforcement officers seek and obtain orders from this Court allowing access to such information.Going forward, publicly docketing electronic surveillance cases and unsealing the applications, orders, and other judicial records in those cases, after there is no longer any need for secrecy, will similarly further the public's understanding of the law and the judicial process in electronic surveillance cases, and serve the deep-seated American principle of open access to the courts. While there is an argument to be made for maintaining secrecy in regards to certain law enforcement tools and techniques, sealing entire dockets isn't the answer. The government could still keep certain filings under wrap or, better yet, actually have to justify limited redactions to the court before locking anything up.The good news is courts might be a bit more welcoming of these arguments. Suits filed in other districts have resulted in the unsealing of a number of court dockets and the release of more information about government surveillance use. While it can be justifiable to withhold certain details about surveillance techniques, the public still has a right to access information pertaining to the general use of surveillance tech to gain a better understanding about what their governments are doing in their name and with its money. The Stranger is hoping its filing will kill off a key designation that often results in court docket black holes.If our petition succeeds, the court will no longer use the grand jury designation for electronic surveillance cases, and information regarding those cases would show up on PACER, the online database for federal court documents. A favorable ruling would also free up more than five years-worth of records on electronic surveillance in Western Washington. At the very least, such records could tell us how often police ask the courts to authorize electronic surveillance in this district. In terms of Stingray use alone, more than a decade of surreptitious spying has been hidden from the general public. In some cases, it's been hidden from the courts themselves. With law enforcement agencies moving towards more digital surveillance deployment, the courts have an obligation to push the government towards more transparency since the government is often unwilling to make these concessions itself.
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House Internet Censorship Bill Is Just Like The Senate Bill, Except Worse
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SESTA and FOSTA Are Cut from the Same Cloth. Both Would Be Disastrous for Online CommunitiesThere are two bills racing through Congress that would undermine your right to free expression online and threaten the online communities that we all rely on. The Stop Enabling Sex Traffickers Act (SESTA, S. 1693) and the Allow States and Victims to Fight Online Sex Trafficking Act (FOSTA, H.R. 1865) might sound noble, but they would do nothing to fight sex traffickers. What they would do is force online web platforms to police their users' activity much more stringently than ever before, silencing a lot of innocent voices in the process.We've already written extensively about SESTA and the dangers it would pose to online communities, but as the House of Representatives considers moving on FOSTA, it's time to reiterate that all of the major flaws in SESTA are in FOSTA too.Section 230 Protects Online Communities. Don't Weaken It.Like SESTA, FOSTA would erode a law referred to as Section 230. Passed in 1996, Section 230 says that online platforms can't be held liable for their users' speech, except in certain circumstances. Without Section 230, it would be extremely risky to host other people's speech online: one lawsuit could destroy your company. Most social media sites wouldn't exist, or they'd look very different from the ones we enjoy today.Section 230 strikes an important balance for when and how online platforms can be held liable for their users' speech. Contrary to SESTA's supporters' claims, Section 230 does nothing to protect platforms that are directly involved with breaking federal criminal law. If an Internet company is directly contributing to unlawful activity, the Department of Justice can and should prosecute it.Under FOSTA, a site would be on the hook if a court simply found that someone had used it for sex trafficking purposes. The law would force platforms to become much more restrictive in their moderation policies, which is likely to disproportionately silence marginalized groups.FOSTA carves an even bigger hole out of Section 230 than SESTA does. It defines the state law exemption to Section 230 more broadly, applying it to "any State criminal statute" related to sex trafficking. State sex trafficking laws are notoriously inconsistent: in Alaska and Massachusetts, for example, statutes define trafficking so broadly that they don't require any indication that someone was forced or coerced into sex work. FOSTA could open the door to litigation far beyond the sex trafficking activities it's intended to target.Broad Criminal Law Would Hurt Legitimate CommunitiesLike SESTA, FOSTA expands federal sex trafficking law to sweep in third parties that unknowingly facilitate sex trafficking (like web platforms), but FOSTA defines those third parties even more broadly than SESTA does, criminalizing conduct by "any person or entity and by any means that furthers or in anyway aids or abets" sex trafficking. It even goes a step further by explicitly making it a crime to be a provider of an Internet service that was used for sex trafficking purposes, provided that you acted in "reckless disregard" of the possibility that your service could be used for trafficking (we've written already about the dangers of applying the "reckless disregard" standard to online intermediaries).Remember, Congress already made it it a federal crime to "advertise" sex trafficking online, via the SAVE Act of 2015. No new law is necessary to prosecute platforms that knowingly facilitate sex trafficking ads. If the Department of Justice has failed to prosecute platforms that violate the SAVE Act, then lawmakers should demand an explanation. In the meantime, Congress shouldn't pass laws threatening every other online community.Bottom Line: These Bills Go After the Wrong TargetsWe've talked a lot about the damage that SESTA and FOSTA would do to speech and communities online. Just as important is what they would not do: fight sex trafficking.SESTA and FOSTA are perfect examples of Congress choosing an easy target rather than the right target. It's easy to prosecute Internet companies, but Congress must do the serious work of understanding traffickingits causes, its perpetrators, and the online tools law enforcement can use to fight itand find better solutions to find and punish traffickers.Since SESTA and FOSTA were first introduced, many experts in sex trafficking have stepped forward to explain that these bills are the wrong solutionthat they would put victims of sex trafficking in much worse predicaments, moving them from the safety of the Internet to a dangerous streetwhere they are much less likely to get help.It's not pleasant to confront the dark realities of sex trafficking, but Congress must. Otherwise, it risks passing a bill that would harm the very victims it's trying to help.Reposted from EFF's Deeplinks blog
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