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Are US Courts 'Going Dark'? (justsecurity.org)
An anonymous reader writes: Judge Stephen Wm. Smith argues that questions about the government's "golden age of surveillance" miss an equally significant trend: that the U.S. Courts are "going dark". In a new editorial, he writes that "Before the digital age, executed search warrants were routinely placed on the court docket available for public inspection," but after the Electronic Communications Privacy Act of 1986, more than 30,000 secret court surveillance orders were given just in 2006. He predicts that today's figure is more than double, "And those figures do not include surveillance orders obtained by state and local authorities, who handle more than 15 times the number of felony investigations that the feds do. Based on that ratio, the annual rate of secret surveillance orders by federal and state courts combined could easily exceed half a million."
Judge Smith also cites an increase in cases -- even civil cases -- that are completely sealed, but also an increase in "private arbitration" and other ways of resolving disputes which are shielded from the public eye. "Employers, Internet service providers, and consumer lenders have led a mass exodus from the court system. By the click of a mouse or tick of a box, the American public is constantly inveigled to divert the enforcement of its legal rights to venues closed off from public scrutiny. Justice is becoming privatized, like so many other formerly public goods turned over to invisible hands -- electricity, water, education, prisons, highways, the military."
The judge's conclusion? "Over the last 40 years, secrecy in all aspects of the judicial process has risen to literally unprecedented levels. "
Judge Smith also cites an increase in cases -- even civil cases -- that are completely sealed, but also an increase in "private arbitration" and other ways of resolving disputes which are shielded from the public eye. "Employers, Internet service providers, and consumer lenders have led a mass exodus from the court system. By the click of a mouse or tick of a box, the American public is constantly inveigled to divert the enforcement of its legal rights to venues closed off from public scrutiny. Justice is becoming privatized, like so many other formerly public goods turned over to invisible hands -- electricity, water, education, prisons, highways, the military."
The judge's conclusion? "Over the last 40 years, secrecy in all aspects of the judicial process has risen to literally unprecedented levels. "
Most private citizens want their legal proceedings private. After all, we've already seen what "a matter of public record" leads to: mugshot websites, voter harassment, and your collected information available to the highest bidder.
Land of the [Redacted].
Anons need not reply. Questions end with a question mark.
Previously, the amount of information gleamable was limited by the need to have physical access to the court. Someone would have to go down to the courthouse, hall of records, or similar location, and physically look at things. Now, one button and the entire country is searchable.
Unfortunately, this ease of information access removes the grey area of "public, but requires time/effort to get and is not easily accessible," and as a result, it's a lot more black and white. The parallels with massive aggregation of data, Hack Once Break Everywhere security issues, and even physical access to an iPhone by the FBI being sufficient or insufficient to overcome local security options, are all similar technological areas where a dichotomy is coming into play.
I can't say I think this is a good thing. Grey areas are good. Humans are grey, and technical models of human society should have grey considerations as well.
Hire a Linux system administrator, systems engineer,
Forget what you think a police state or authoritarian hellhole looks like, secret courts are really it. The justice system is where you're supposed to be able to make your case against charges, where bad laws are struck down, where the truth is revealed, you have a constitutional right to face the evidence, whether it's facts gathered or people, or a video recording, the second that system gets locked behind "National Security", such as many of the laws are where you can't even find out which one you broke because those very laws are secret themselves. If you can't cross examine the evidence and the law, question it in every detail, and do so in a public manner is when you know you're really in a dog and pony show and not a court. These systems set a terrifying precedent, they should've been disbanded and dissolved years ago, allowing them to continue just enables our decent into a totalitarian state, and once that happens, it will be hell to get out of, especially with technology being abused to get us there.
Sealing legal proceedings before a public court is an outrage in a democracy; the application of government force must remain open in a democracy.
For people to resolve their disputes by private arbitration, however, is fine; that's a private choice and no government force is involved; therefore, there is no justification or need to have such resolutions be public.
Years ago, the government sought to keep sources and methods classified so they could keep using them. OK, maybe that made sense.
But now, it’s routine for the government to deem evidence secret, or want secret access to someone’s data. We allowed private companies to gather information on everything we do, and now the government wants access to that information, ant secret access no less.
What have they got to fear? If the government is going to investigate me for software piracy and they want my ISP’s records, where is the harm in my being made aware of that? Shouldn’t I be able to plan for my defense?
Just as we’ve trained the police to view the citizen not as part of the community, but as the enemy, the government has taken secrecy tactics should only apply to terrorist suspects under active surveillance and used them against the populace at large.
Look at the big picture. Examine what has happened to the USA over the last 40 years. Watch Requiem for the American Dream on Netflix. You will begin to realize that what has happened over this time is that the most wealthy have been stealing back the power we wrested from them over the last century. They are stealing back wealth from the middle class. They are stealing back influence over the government, the state. They are corrupting our academics. They are stealing and corrupting our culture. Call it corporate control. Name it with whatever buzzwords you want. But remember what it really is: the most wealthy are seeking total domination over the rest of us. And judging by much of the discourse on discussions like this, they have achieved some success.
I suppose we can be consoled in that the middle class was able to wrest power from the most wealthy in the first place. We are many, and they are necessarily few. We must learn to be strong again. We must learn to free our minds, to educate ourselves about history, politics, and philosophy. Above all we must fight the pervasive cynicism that so weakens us. Cynicism is for the weak.
There is no 'privacy' aspect to anything you have described. It's an open court, and the local gossip knows what was said in it. The reason it's an open court is precisely so that everyone WILL know about it. A closed court is a star chamber. Meanwhile anyone who wants to look up my address can check the electoral roll. My phone number is in the book.
I'm kind of partial to the courts being public by default. It's hard to uphold our end of the social contract, which is to observe and ensure justice is being served, if we're not privy to the proceedings, judgment, and sentencing. It is, after all, our duty to make sure that the justice being done in our name is actually just. Default to public and do what we can to ensure all possible information is public with very few exceptions. Secret courts have, historically, been bad ideas.
"So long and thanks for all the fish."