(CN) — The public has the right to know the legal reasoning behind a judge’s refusal to make Facebook provide the government with encrypted communications, lawyers for the ACLU and The Washington Post told a Ninth Circuit panel Tuesday.
In 2018, the Department of Justice took Facebook to court seeking to compel the social media giant to wiretap voice calls between suspected MS-13 gang members. Facebook had refused to break the end-to-end encryption on its Messenger app that protects calls from being intercepted.
Reuters reported that sealed proceedings took place in the Central District of California. U.S. District Judge Lawrence O’Neill found in Facebook’s favor, but kept his ruling confidential.
The ACLU filed a motion seeking to unseal the judge’s opinion, contending that limited redactions could prevent classified information about the investigation from being disclosed. It was joined in a legal brief by The Washington Post.
O’Neill rejected their request last year under the Title III of the Wiretap Act, which he said seals certain protected wiretap materials unless good cause can be shown to unseal them.
"The materials at issue in this case concern techniques that, if disclosed publicly, would compromise law enforcement efforts in many, if not all, future wiretap investigations. In addition, in the instant case, the investigation is ongoing,” O’Neill wrote, adding that it would be impossible to release even a redacted version as it “is so entangled with investigatory secrets that effective redaction is not possible.”
The ACLU has argued that it is only seeking ancillary court records, not presumptively sealed materials like recordings or wiretap applications.
U.S. Circuit Judges M. Margaret McKeown, N. Randy Smith, and Jacqueline Nguyen took up the appeal of O’Neill’s order at a hearing Tuesday, each appearing by video from their respective chambers as the court has suspended in-person arguments due to the Covid-19 pandemic.
McKeown, a Bill Clinton appointee, asked how the panel could overcome the notion that a criminal investigation and ensuing court battle are intertwined.
“Here the judge has found that the information in what you seek is intricately intertwined with the whole investigative process. How do we get around that kind of a finding?” she asked.
ACLU Surveillance and Cybersecurity counsel Jennifer Granick said O’Neill misstated the Wiretap Act.
“The district court did not provide any information that suggests that unsealing this opinion would interfere with this investigation,” she said. “The district court’s decision was really based on two things that are mistakes. The district court said the Wiretap Act seals anything related to underlying wiretap proceedings, and that’s a misstatement of law.”
Granick also took issue with O’Neill’s finding that an unsealed ruling could jeopardize future government investigations by exposing its inability to wiretap internet calls.
“But we already know that,” Granick said. “The government has revealed it cannot intercept end-to-end encrypted communications over the Facebook platform.”
She added, “What is not known is the court’s reasoning, why Facebook did not have to comply with the government’s demand in this case.”
Nguyen said she agreed with the ACLU that the public has a substantial interest in checking the government’s police powers, especially those involving novel forms of surveillance. But she wondered whether the ruling could be unsealed at a later point.
"Why can’t we at this point tip the balance in favor of the government when it comes to ongoing investigations?” the Barack Obama appointee asked. “Isn’t there an opportunity then later on to address those concerns?”
Granick again noted the Justice Department cannot crack end-to-end encryptions.
“First we know the government has stated it is hobbled in investigations involving Facebook Messenger and other end-to-end encrypted platforms. Second, there are no cases that say the government is entitled to keep an investigative capability secret. In fact, there is a robust democratic need for people to know what the government’s capabilities are in investigations, novel or otherwise,” Granick said.
“When it comes to ongoing investigations where targets are able to evade an investigation if methods were revealed, that’s a concern as well,” Nguyen said.
Granick said that kind of information can be redacted, noting the three-judge panel has had the benefit of having seen O’Neill’s ruling, while the ACLU has not.
Representing The Washington Post, attorney Duffy Carolan said the news outlet’s motion to unseal records from the Justice Department’s fight with Facebook is attenuated from the agency's underlying investigation into MS-13’s activities.
“The case was already charged and indictments returned at the time we brought our motion to unseal,” Carolan said.
Judge Smith, a George W. Bush appointee, pressed Carolan to answer whether she believes O’Neill abused his discretion in finding the Justice Department’s interest in preserving the secrecy of its techniques trumps the public’s right of access.
“That is his discretionary decision,” Smith said.
Carolan said it was a conclusion not supported by facts, but “a conclusion that’s tied to an erroneous interpretation of law.”
The judges had equally tough questions for Justice Department lawyer Scott Meisler, who argued that the contempt proceedings against Facebook arose from a sealed wiretap application.
“That starts us off with a serious history of confidentiality,” he said.
“What concerns me is the opinion,’ McKeown said. “To the extent the legal analysis does not implicate the details of the investigation, or even the hindrances it might have in terms of the Facebook platform, I have some trouble understanding why that should not be made public.”
“We would urge the court to start with a threshold quest of whether the right of access attaches in the first place, and not reverse-engineer dissemination of an opinion because in this instance the court determines some piece of it may be made public without harming government interest,” Meisler said.
McKeown still questioned whether O’Neill’s rationale could be revealed without compromising the government’s investigative tools. “I have sympathy for the public's right of access of understanding the rationale of what occurred,” she said.
Meisler, appearing from a Justice Department conference room, seemed singularly bedeviled by technical difficulties as his audio feed became ever more garbled. But he managed to argue that O’Neill’s opinion could not be untethered from the confidential proceedings.
“The right of access to the opinion goes hand in hand with the other pieces, with the openness of the proceeding,” he said.
Granick said the government was asking the court to agree with its exceptionally expansive reading of the Wiretap Act. “If you rule that this opinion should remain sealed, you will be the first court to rule that legal analysis in an opinion in a criminal case is not available to the public,” she said.
The panel took the case under submission.
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