A federal appeals court last week refused to unseal a court order that reportedly stopped the Justice Department from forcing Facebook to break the encryption it offers to users of its Messenger application.
The unpublished decision ends an effort by EFF, ACLU, and Stanford cybersecurity scholar Riana Pfefferkorn to unseal the 2018 ruling from a Fresno, California federal court. The ruling denied an attempt by the Justice Department to hold Facebook in contempt for refusing to decrypt Messenger voice calls. Despite the fact that the ruling has significant implications for Internet users’ security and privacy—and that the only public details about the case come from media reports—the U.S. Court of Appeals for the Ninth Circuit upheld an earlier decision by the trial court that the public had no right to access the court decision or related records.
As we argued, unsealing records in the case is especially important because the public deserves to know when law enforcement tries to compel a company that hosts massive amounts of private communications to circumvent its own security features and hand over users’ private data. The Washington Post also filed a motion to unseal the court order.
The Ninth Circuit ruled that the public has no First Amendment right to access the court records because the documents are part of an ongoing federal law enforcement investigation and that they “have not historically been open to the general public during an investigation.” The court declined to consider whether we had a similar right to access the records under the common law.
EFF is disappointed in the Ninth Circuit’s ruling, which does not discuss, much less analyze, the countervailing public interest in knowing about the limits the law places on government efforts to compromise the digital security and privacy of millions of Facebook Messenger users. It also fails to explain how redacting the court opinion would not address law enforcement concerns while still giving the public important information about the government’s efforts to undermine Internet users’ security.
We thank the ACLU, Pfefferkorn, and The Washington Post for working together to shed light on this important case. We are also grateful for the supportive friend-of-the-court briefs filed by the Reporters Committee for Freedom of the Press, Mozilla and Atlassian, Upturn and several security experts, and former federal magistrate judges.
