9th Circuit Judges Skeptical About DOJ's Effort to Seal Encryption Documents

Smith raised questions about First Amendment and common law rights, saying Title III dictates what is permitted and implies what can and can’t be disclosed. The court needs to decide whether the First Amendment of common law rights are outweighed by the “compelling government interest” in shielding the law enforcement techniques, Smith said.

The court should unseal the lower court’s ruling, the American Civil Liberties Union told the court Tuesday. “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 isn’t public,” ACLU attorney Jennifer Granick said to three judges in Seattle. Unsealing the information would compromise criminal investigations, DOJ attorney Scott Meisler countered.

The public has a right to know the legal basis for the lower court's decision, said Granick. The district court said if the public saw this opinion, it would reveal information about a government investigation that could be detrimental to future probes, presumably because it would reveal the government’s inability to wiretap the Facebook Messenger VoIP program, she continued. But the government has already revealed in proceedings that it can’t intercept encrypted communications over Facebook platforms, she said.

There’s concern that revealing details about government access to the platform would undermine confidential investigations, said McKeown. The government bears the burden to prove it, and there are no citations before the district court that back that claim, Granick said.

Nguyen agreed balancing the public’s right to access is substantial when considering emerging technologies. But she asked why can’t the court tip the balance in favor of the government in ongoing investigations. She asked whether there’s an opportunity to address concerns after the investigation is finished.

It’s already clear the government is “hobbled” in its investigation involving Facebook Messenger and other end-to-end encrypted platforms, Granick said, citing court proceedings. Nguyen said it’s a “concern as well” that criminal targets might be able to evade law enforcement if investigatory information is public.

The two sides in the case don’t disagree with the “most important piece” of the Wiretap Act, argued Meisler: These contempt proceedings arise from a proceeding that is itself sealed by statute and has never been public. If a court grants a wiretap authorization, it does so in an order that’s sealed by statute, and it may compel third-party technical assistance to the government, and those materials are docketed in a way that’s never been open to the public for many years, he said, calling it a “serious history” of confidentiality.

The court is familiar with the “very important” government concerns about compromising investigations, said McKeown. The opinion would reveal legal analysis, which doesn’t implicate the details of the government investigation or its hindrances regarding Facebook, she said: “I’m having trouble understanding why that should not be made public.”

"We urge a threshold question of whether a right to access attaches in the first place,” said Meisler. “I don’t think we have a right of access attaching to the contempt proceeding ancillary to an otherwise sealed matter that relies on the investigative stage of a case.”

Reading a previous court decision, Nguyen said logic dictates that some filings on contempt hearings ancillary to grand jury investigations may be open to the public because of the similarities to criminal trials: “That’s not a reverse engineering. That is starting with the application of the logic test.”

Meisler said if proceedings are parallel, one on right of access and the other on criminal discovery subject to protective orders, it does “interfere not only with ongoing investigations but with the way an ongoing prosecution is carried out.”