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ACLU Appeals Decision Allowing Government to Keep Court Processes Secret

Ben Siracusa Hillman,
Speech, Privacy and Technology Project
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May 23, 2011

Over the past few months, we've informed you about developments in our case challenging the government's efforts to collect the private records of three Twitter users as part of its investigation related to WikiLeaks. On May 4, the magistrate judge overseeing our challenge issued a new order concerning our request that all of the court records in this case be listed on the public court docket.

The court partially granted our request, and is now publicly tracking electronic surveillance orders for the first time. While we welcome this development, the only information being publicly provided right now relates to the Twitter Order. Unfortunately, similar information has not been provided about other electronic surveillance orders, such as any orders that may request records from companies other than Twitter.

As a result, last Thursday we filed an appeal of the May 4 decision to the U.S. District Court, asking the district court to order public docketing of any electronic surveillance orders and related materials in this case.

Public docketing may seem like one of those administrative, technical things that get lawyers all excited but that doesn't have much practical effect. But public docketing is critical to all of us. It is what prevents the government from conducting court processes in secret. A docket is like an index to a court's proceedings — a list showing, at a minimum, the date and nature of judicial documents filed by parties and orders issued by the courts. Even where documents indexed by the docket may themselves be secret and unavailable to the public, higher courts have routinely required public docketing in order to give the public notice of what is happening at the courts and an opportunity to challenge that secrecy.

This case is just one example of the unfortunate recent trend to make our court processes increasingly secretive and nontransparent. We need to put an end to that. Public dockets are the way we can keep track of how the government uses the courts to accomplish its goals. For this reason, they are essential.

We hope that the district court will take this opportunity to reaffirm the right to public docketing of even secret matters, and to expand the limited tracking system the court has now created into one that fulfills the law's requirement that all judicial records be indexed on a public docket.

Our effort to get courts to publicly docket electronic surveillance orders is just one part of a broader campaign to protect our rights to privacy in our electronic communications. If you want to get more involved in this effort, sign our petition and tell Internet companies that you expect them to stand up for your rights and be transparent about government demands.

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