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. "

Comments

I was wondering how the increase in lawyers

[rsilvergun]

graduating from schools was going to play out. As college costs crept up and profit motive took over the schools were cranking out law graduates because it's dirt cheap to make a lawyer compared to a doctor. Pretty soon we were going to have far more trained lawyers than we needed. Think of it: millions of young, well trained law school grads with $80k+ in debt and no job prospects whatsoever. They were bound to go after corporate America in a massive frenzy of class action lawsuits.

The solution: Arbitration. Congress past a law which the SCOTUS upheld (they kinda had to, the law is pretty clear and there's nothing in the constitution to bar it). We're all forced to sign away our rights in exchange for employment and essential services. But that hasn't solved the problem of too many lawyers. I wonder what the next stop on their whirlwind tour of fun will be.

I'm guessing they'll turn on the public at large. A buddy of mine got caught without car insurance and got in a wreck (he was paying his premiums with money orders and one of the drones at the payment processing center stole his last money order. Being already a high risk driver his insurance company took that opportunity to cancel his plan without notice). Ten years ago it would have been a loss to the insurance company. Now? A lawyer sued, one a default judgement and my buddy's screwed for the next 20-30 years. But they'll run out of easy targets like my poor shlob of a friend soon. It's gonna get real nasty real fast.

Re:And for good reason

[haus]

Currently, I am on the receiving end of what I consider to a nuisance lawsuit. Someone went to the same school years ago as I was working on a graduate degree became upset because I called him an "ass", "fool", and an "embarrassment" when he set up a conference where he invites a speaker who was expressing that society had a runaway problem with witches.

https://www.scribd.com/doc/287...

The complaint is a train wreck, and I made a point of publishing it in several locations. The plaintiff had a fit and has been attempting to have them taken down. Fortunately, these are public documents and he has had limited success in these efforts. The amended complaint was served to me almost a year ago, and it quickly became clear that the plaintiff does not want the case to go to any type of decision, instead he is delaying over and over again (still waiting to hearing on a motion to dismiss submitted 10 months ago).

While I would love to have my day in court so that this mess can finally be put to bed, I do find some comfort while I wait to be able to show others the details of the 'claims' being made against me (and the school, plus a dozen or so other individuals).

Lawyers and the public good

[Okian Warrior]

I was wondering how the increase in lawyers graduating from schools was going to play out. As college costs crept up and profit motive took over the schools were cranking out law graduates because it's dirt cheap to make a lawyer compared to a doctor. Pretty soon we were going to have far more trained lawyers than we needed. Think of it: millions of young, well trained law school grads with $80k+ in debt and no job prospects whatsoever. They were bound to go after corporate America in a massive frenzy of class action lawsuits.

And yet, with all the lawyers in the country that are under-utilized, we see nothing comparable to the "open source" movement.

Engineers get together and create massive public value in works such as Mozilla, Apache, and LibreOffice. Lesser projects abound, free for use by anyone.

With all the abuse we take from the government and the expense of taking something to court, you would think that some of these lawyers with spare time on their hands would take an interesting case and litigate it for cost. Not the $450/hr they charge, but just the court fees.

The could build a portfolio of experience and reputation, something that would attract paying customers and perhaps donations from benefactors.

I read about one (count them - one!) lawyer who set up a house with grow lamps, trying to catch the cops using thermal cameras with no probable cause.

One lawyer did one smart setup in ten years or so.

If the cops knew that there might be lawyer stings, but didn't know where they were or what they might be, there'd be a *lot* less abuse.

Re:And for good reason

[Wycliffe]

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.

I think this is talking about more than just court records. This is talking about all the companies that make you waive your rights and instead are forced to use arbitration of their choosing. The easy solution for court records is to put them as a paper copy in a building and don't allow cameras. This would at least make them somewhat private for the average citizen. The easy solution for arbitration is to not allow it unless both parties agree. And I mean actually agree at the time of disagreement not some boilerplate agreement that is signed or clicked at the beginning in order to get service. For the most part, a person shouldn't be allowed to sign away their rights to sue in court. In certain situations like horseback riding, parachuting, etc... you assume certain risks when you do the activity but that's not the same as signing away your rights to sue if for instance they forget to pack a parachute in your bag.

Re:This is how it starts

[JesseMcDonald]

Ignorance is no excuse for breaking the law and that is right, but how can they expect you to obey they law if they won't tell you what it is?

The error here is in the premise. Ignorance is a perfectly good excuse when the law is secret, or else so complex that one one can reasonably be expected to be familiar with all the rules and regulations and legal precedents applicable to their actions or how they are likely to be interpreted. The concept that "ignorance is no excuse" dates back to a time when the entire law could be inscribed on a sign and posted in the village square. Even putting aside laws which are not freely available to the public (e.g. building codes) or outright secret, the wild proliferation of the legal system into a mass of overlapping and conflicting laws governing every aspect of modern life—more often than not accompanied by punishments far out of proportion to the supposed crimes—has rendered that argument obsolete. Ignorance can no longer be considered a matter of negligence.