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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.
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This is more of an issue (in some ways) for litigation. Criminal information will be public for a long time yet; there is too much interest in being able to run background checks. It would be great if we had better laws allowing records to be expunged after a certain number of years, but too many upper-middle-class people have so little exposure to law enforcement (or have such limited time) that they use "has an arrest record" as a proxy for "will be a bad employee/tenant/etc..."
But on the civil side, one of the benefits of most settlements, mediations, and arbitrations is that the result is secret rather than public. The bigger benefit is that it is so much faster than having to go to court, which can take years to resolve issues you should be able to hash out in less than six months.
And then there is the national security and "under seal" stuff, which should probably have a default expiry date for the seal any time something is filed under seal.
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Have gnu, will travel.
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.
We all know that only terrorists and commies wanna see what's goin' on deep in the hallowed halls of our sacred legal system!!
Just cruising through this digital world at 33 1/3 rpm...
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.
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Your reasoning for the criminal cases is basically the idea behind the EU right to be forgotten. I know it's not a popular view but I can see the logic behind it. If you've done something and served your time, why does everybody and their dog need to know that you've left prison? With that sort of system, any offender is almost enforced into a life of crime...
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.
One thing that Snowden taught us is that government "secrets" can be exposed. They will be, in due time. The problem is that it will always be after the fact.
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.
Arbitration should be banned completely as it is always a rigged deck. All court records should be wide open to the public at all times and conveniently and freely available. Much of the terrors that have come into play are a direct result of the right-wing budget cutting lunatics. For example, we see the VE diesel engine scandal spreading to numerous other car makers since the EPA did not have the funding top test vehicles and allowed companies to test and report how wonderfully clean their exhausts were. Now the defective air bag scandal is exploding and instead of one or two million bad air bags the US alone is looking at ninety million defective and even murderous air bags. Letting the light shine on every conversation and having everyone as well as the government wide open to scrutiny really is our only hope of creating a fair and just society. Right now we have innocent men rotting in prisons with states refusing DNA testing. We have prosecutors who have hidden evidence from the courts. We have prisons with men who are absolutely innocent beyond all doubt and the prisons refuse to release them even when instructed by the courts unless they "confess" to some lesser crime. This is done to keep innocent men from filing law-suits when released. Just how messed up can a system be before the stupid citizens are willing to confront the truth?
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."
Transparency is better than the alternative. Analyze any case (general case, not a specific example) and transparency benefits more people than secrecy would. Secret military undertaking? Benefits the smaller/weaker side, or a few politicians who would lose political position because of majority opinion. Secret financial transactions? Benefits those who might otherwise be taxed. Secret sexual affair? Generally benefits the involved parties at the expense of larger families or groups.
Secret of Santa? Let's save things like that for childhood. If people would grow up and face reality, they wouldn't need secrets.
I don't think capricious and arbitrary mean what you think they mean. Arbitration is not capricious and arbitrary, it is heavily slanted in favor of the organizations that choose the arbitrator. That's predictable and planned, nearly the opposite of capricious and arbitrary.
I think we've pushed this "anyone can grow up to be president" thing too far.
Snowden revealed a lot of information about US agencies spying on US citizens. Unfortunately, he also revealed a lot of information about US agencies spying abroad, and I think that made a very bad impression on lots of people.
"When you have eliminated the unacceptable, whatever is left, however improbable, must be the truthiness" - Holmes