Court Orders Authorizing Law Enforcement To Track People’s Air Travels In Real Time Must Be Made Public

The public should get to see whether a court that authorized the FBI to track someone’s air travels in real time for six months also analyzed whether the surveillance implicated the Fourth Amendment, EFF argued in a brief filed this week.

In Forbes Media LLC v. United States, the news organization and its reporter are trying to make public a court order and related records concerning an FBI request to use the All Writs Act to compel a travel data broker to disclose people’s movements.

Forbes reported on the FBI’s use of the All Writs Act to force the company, Sabre, to disclose a suspect’s travel data in real time after one of the agency’s requests was unsealed. The All Writs Act is not a surveillance statute, though authorities frequently seek to use it in their investigations. Perhaps most famously, the FBI in 2016 sought an order under the statute to require Apple to decrypt an iPhone by writing custom software for the phone.

But when Forbes sought to unseal court records related to the FBI’s request to obtain data from Sabre, two separate judges ruled that the materials must remain secret.

Forbes appealed to the U.S. Court of Appeals for the Ninth Circuit, arguing that the public has a presumptive right to access the court records under both the First Amendment and common law. EFF, along with the ACLU, ACLU of Northern California, and Riana Pfefferkorn, filed a friend-of-the-court brief in support of Forbes’ effort to unseal the records.

EFF’s brief argues the public has the right to see the court decisions and any related legal arguments made by the federal government in support of its requests because court decisions have historically been public under our transparent, democratic traditions.

But the public has a particular interest in these orders sought against Sabre for several reasons.

First, the disclosure of six months worth of travel data implicates the Fourth Amendment’s privacy protections, just as the U.S. Supreme Court recently recognized in Carpenter v. United States. “Just like in that case, air travel data creates ‘a detailed chronicle of a person’s physical presence’ that goes well beyond knowing a person’s location at a particular time,” the brief argues. The public has a legitimate interest in seeing the court’s ruling to learn whether it grappled with the Fourth Amendment questions raised by the FBI’s request.

Second, because federal law enforcement often requests secrecy regarding its requests under the All Writs Act, the public has very little understanding of the legal limits on when it can use the statute to require third parties to disclose private data about people’s movements. The brief argues:

This ongoing secrecy violates the public’s right of access to judicial records and, critically, it also frustrates public and congressional oversight of law enforcement surveillance, including whether the Executive Branch is evading legislative limits on its surveillance authority.

Third, the broad law enforcement effort to seal its requests under the All Writs Act and surveillance statutes frustrates the public’s ability to know what authorities are doing and whether they are violating people’s privacy rights. From the brief:

This results in the public lacking even basic details about how frequently law enforcement requests orders under the AWA or other statutes such as the SCA [Stored Communications Act] and PRA [Pen Register Act]. This is problematic because, without public access to dockets and orders reflecting authorities’ surveillance activities, there are almost no opportunities for public oversight or intervention by Congress.

Fourth, because Sabre collects data about the public’s travels without most people’s knowledge or consent, public disclosure is crucial so that people can understand whether the company is protecting their privacy. The brief argues:

Disclosure of the judicial records at issue here is thus crucial because the public has no way to avoid Sabre’s collection of their location data and has almost no information about when and how Sabre discloses their data. Court records reflecting law enforcement demands for people’s data are thus likely to be the only records of when and how Sabre responds to law enforcement requests.