Victory! EFF Wins Appeal for Access to Wiretap Application Records

Imagine learning that you were wiretapped by law enforcement, but couldn’t get any information about why. That’s what happened to retired California Highway Patrol officer Miguel Guerrero, and EFF sued on his behalf to get more information about the surveillance. This week, a California appeals court ruled in his case that people who are targets of wiretaps are entitled to inspect the wiretap materials, including the order application and intercepted communications, if a judge finds that such access would be in the interests of justice. This is a huge victory for transparency and accountability in California courts.

This case arose from the grossly disproportionate volume of wiretaps issued by the Riverside County Superior Court in 2014 and 2015. In those years, wiretaps from that single, suburban county accounted for almost twice as many wiretaps as were issued in the rest of California combined, and almost one-fifth of all state and federal wiretaps issued nationwide. After journalists exposed Riverside County’s massive surveillance campaign, watchdog groups and even a federal judge warned that the sheer scale of the wiretaps suggested that the applications and authorizations violated federal law.

Guerrero learned from family members that his phone number was the subject of a wiretap order in 2015. Guerrero, a former law enforcement officer, has no criminal record, and was never arrested or charged with any crime in relation to the wiretap. And, although the law requires that targets of wiretaps receive notice within 90 days of the wiretap’s conclusion, he never received any such notice. He wanted to see the records both to inform the public and to assess whether to bring an action challenging the legality of the wiretap.

When we first went to court, the judge ruled that targets of wiretaps can unseal the wiretap application and order only by proving “good cause” for disclosure. The court then found that neither Guerrero’s desire to pursue a civil action nor the grossly disproportionate volume of wiretaps established good cause for disclosure, commenting that the number of wiretaps was “nothing more than routine.” The court further rejected our argument that the public has a First Amendment right of access to the wiretap order and application.

We appealed, and the Court of Appeal agreed that the trial court erred. The appeals court made clear that, under California law, the target of a wiretap need not show good cause. Instead, the target of a wiretap need only demonstrate that disclosure of the wiretap order and application is “in the interest of justice”—which unlike the good cause standard, does not include any presumption of secrecy.

Importantly, the court provided guidance for how to assess the “interest of justice” in this context, becoming one of the first courts in the nation to interpret this standard. As the court explained, the “interest of justice” analysis requires a court to consider the requester’s interest in access, the government’s interest in secrecy, and the interests of others intercepted persons, and, significantly, the public interest. In considering the public interest, the court explained, courts should consider the huge volume of wiretaps approved in Riverside County. The court specifically rejected the trial court’s assessment that those statistics, on their own, were irrelevant without an independent showing of nefarious conduct.

The case now returns to the trial court, where the judge must apply the Court of Appeal’s analysis. We hope Mr. Guerrero will finally get some answers.