The ACLU, ACLU of Northern California, Electronic Frontier Foundation, and Stanford Law School’s Riana Pfefferkorn are petitioning to unseal a secret judicial ruling reportedly holding that the Department of Justice cannot force Facebook to alter Facebook Messenger in order to enable the FBI to conduct wiretaps in an investigation. The petition, initially filed in the Eastern District of California, argues that the First Amendment and common-law require public access to the legal ruling as well as to the docket sheet and certain other portions of the underlying proceeding.

According to press reports, Facebook refused a request from the Justice Department to gain access to its encrypted communications, arguing that complying with the request would require the company to redesign Messenger and dismantle encryption for all users. Encryption safeguards communications against government abuses, identity thieves, credit card fraud, and other criminal activity.

The Justice Department reportedly moved to hold Facebook in contempt of court and lost.

ACLU v. US Department of Justice seeks to make public the legal reasoning that decided the case—what authority the Justice Department thought it had to force Facebook to undermine its security infrastructure, and why the court determined the government was wrong.

The court’s opinion that Facebook did not have to comply with the Justice Department’s demand is an interpretation of law affecting the private communications of millions of Americans who use communication services such as Messenger, WhatsApp, Skype, and Microsoft Outlook. The public deserves to know what power the government does or does not have to force a service provider to undermine its security features, threatening privacy and security online.

In February of 2019, the Eastern District of California denied the ACLU’s motion to give the public access to the court’s interpretation of statutory language in the Wiretap Act. The case is now pending on appeal before the Ninth Circuit.

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