Wall Street Journal Scores Very Limited Win In Fight With DOJ Over Sealed Surveillance Documents

The Wall Street Journal has obtained a nominal "win" in a Stingray-related legal action aimed at unsealing electronic surveillance orders, but the decision reads more like a loss. Jennifer Valentino-Devries reports:

In the order, made after a series of legal motions brought by the Journal’s publisher, Dow Jones & Co., U.S. District Judge Nelva Gonzales Ramos of the Southern District of Texas found that Dow Jones has a legal right to see government applications for surveillance, an idea the U.S. Justice Department had fought. But she agreed with the Justice Department that the requested documents shouldn't be disclosed yet because the 14 applications, dating from 2010 to 2013, all relate to continuing cases.

Yes, the WSJ has a right to see these files… but not until the DOJ decides these investigations are really and truly over -- a determination that has yet to be reached for files zooming past the half-decade mark.

The oral arguments delivered in June provide a little more insight into the DOJ's thought processes -- mainly that it should be the sole arbiter of document releases. The DOJ went past the constraints of its earlier argument -- that "open" investigations are not subject to "common law access" -- by claiming that documents used in the course of investigations, even closed ones, are not public records.

I think our position is that "ongoing" is perhaps the wrong word choice in order to determine where the common law right of access and the First Amendment right of access applies. What we would say is that there is significant authority for the government's argument that pre-indictment investigations and the warrants and the applications and the orders that are contained in the context of pre-indictment investigations are not subject to the common law right of access.

Dow Jones had asked the government to provide periodic status updates on these supposedly "open" investigations. The DOJ ignored these requests until prompted by the court, at which point it declared the files to be beyond the reach of the public. Here's the judge's recap of the events:

Dow Jones then filed earlier this year the motion for an updated status report requesting various things: the government to update the report regarding the status of the investigations, and then making public certain versions of the status report, and the sealed appendix. I believe then the government responded as I said, basically saying no updating is necessary here because there is no common presumption of access or First Amendment right.

The court didn't necessarily agree with this assertion but it did find the "balancing test" favored the government's interests. Dow Jones' legal counsel has asked for some additional transparency in docket filings, which would both provide the public with more information as well as assist the WSJ in determining the accuracy of the DOJ's assertions. (It could potentially aid in sussing out the form of surveillance being used as well.)

I would just make the one small addition that, you know, a lot of these applications have a bunch of different requests kind of all pulled together. We've got pen register, trap and trace, we've got D orders, we've got subpoenas, we've got statutory search warrants. And so I would think that an entry ought to reflect that, particularly as it relates to ongoing access issues.

You know, one -- some of these cases in which we've sought access are called In Re Sealed Application, some are called In Re Pen Register. The last one -- the most recent one is In Re Search Warrant. Well, if it's In Re Search Warrant, then the government's argument that these aren't search warrants looks a lot different. And so I think that the more specificity with regard to the basis of the application would help guide the Court as well as anyone who is seeking access to these to try and determine exactly what types of access might apply.

The DOJ, unsurprisingly, isn't a fan of this idea. The surprising part is that -- in arguing against Dow Jones' proposal -- it basically admitted it deploys multiple investigative tools and techniques using a single, apparently non-specific judicial authorization.

[F]or efficiency purposes, we've tended to bring a lot of these actions under one single document so that we don't have to keep coming back to the judge to get separate authorizations for different types of investigatory techniques in the same investigation, so we've just found it expedient to do that at one time.

There are your parallel construction and your Stingrays d/b/a pen registers, etc. And this slips by the court unquestioned.

As it stands now, the DOJ owes the Wall Street Journal a status update in two weeks… and that's about it. The paper may have won the right to unseal these documents, but apparently any future transparency will be left to the discretion of the government.

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