June 19, 2019

In Support of Public Access to Legal Decisions Regarding Government Surveillance

Harlan Yu and Logan Koepke

Amicus brief

Together with computer security experts, we filed an amicus brief in support of the unsealing of a judicial opinion regarding the federal government’s attempt to wiretap Facebook Messenger voice calls, which are end-to-end encrypted.

Individuals cannot know, or obey, laws they cannot read. When a court decides a case, it applies and explains the law—and that precedent is used by and against individuals in subsequent cases. It is also used to decide how to structure one’s personal and business activities in ways that comply with that law and that rely on reasonable expectations of what that law is. Access to the law ensures that individuals and organizations can trust that they know the bounds of the government’s power to conduct surveillance and investigations—even if they are not permitted to know the precise methods. At issue in this case is that very trust. Internet users, security professionals, and the public at large need to know whether the government can force companies and technologists to expend resources to change their code and allow the government access to otherwise encrypted materials.

The district court’s decision denying appellants’ motion to unseal, however, leaves security professionals, companies, and internet users in the dark. They are deprived of the judicial reasoning explaining what the law is—and can only speculate as to what their potential responsibility to the government may be in a similar case.

In the meantime, security experts and organizations, like amici, have to grapple with the unverifiable speculation which is the information about this sealed case. Lack of access to the district court’s decision creates considerable uncertainty about the security of people’s communications over the internet. This uncertainty is dangerous for all internet users, but the risks are especially acute for many vulnerable users, such as human rights activists and victims of domestic violence. Users, wary of potential backdoors being built for the government by companies, could decline to update their software with the latest security fixes. In doing so, their device becomes a vulnerability for the entire system—an unvaccinated host susceptible to contract, and spread, computer viruses and other types of malware.

Unsealing the materials requested by Movants in this case would shine daylight on the judicial reasoning involved, inform technologists and companies about whether and how developers may be required to alter their code for the government, and allow technologists to dispel the uncertainty that threatens to damage user trust. All this could be done without requiring the government to disclose details of any ongoing investigation or particular investigative techniques that are the proper subject of a sealing order.