Dow Jones files motions to open court cases of government surveillance

Craig Linder, assistant general counsel of Dow Jones & Co., the parent of The Wall Street Journal, Barron’s and Marketwatch.com, posted the following on the company’s blog Tuesday morning:

Dow Jones has filed a series of motions in federal court seeking to bring some sunshine into the government’s ubiquitous yet opaque practice of pursuing court-sanctioned surveillance.

Each day, federal prosecutors seek courts’ permission to trace telephone calls, locate wireless phones, and conduct other electronic surveillance. In the overwhelming majority of cases, those requests, resulting court orders, and supporting materials remain indefinitely sealed in court files, even years after the underlying investigations are closed.

Courts are free to open the files to the public whenever confidentiality is no longer necessary. Yet once these materials are sealed, courts almost never reconsider their decisions. The result is that nearly an entire category of law-enforcement surveillance activity remains shielded from public scrutiny.

Our judicial system is not supposed to operate in that kind of perpetual darkness. Transparency in our courts discourages misconduct, restrains the abuse of judicial power, and promotes public confidence in the rule of law. The First Amendment and the common law grant the public the right to access court records, including hearing transcripts, docket sheets, and search-warrant applications. Electronic surveillance orders should be no different.

That’s why Dow Jones, the publisher of The Wall Street Journal, this week filed a series of motions with the U.S. District Court for the Southern District of Texas seeking the unsealing of 11 different cases in which federal prosecutors sought permission to conduct some form of electronic surveillance. As our court filings say, “This pervasive secrecy is particularly troubling given the widespread public interest in issues relating to government surveillance and the privacy of electronic communications.” Dow Jones is represented in this matter by lawyers from Vinson & Elkins LLP in Dallas and Houston, including Tom Leatherbury, Marc Fuller, and Liz Devaney.

Our court action in Texas has been filed in conjunction with a Wall Street Journal article examining the secrecy surrounding these types of surveillance orders. As WSJ reporter Jennifer Valentino-DeVries found in her article, some judges worry that the pervasive sealing of orders make it difficult for Congress and the public to keep tabs on whether the government is using its surveillance authority properly.

At Dow Jones, we have a proud tradition of bringing – and winning – lawsuits to vindicate the public’s right to access information about their government’s activities. Just last year, we won a decision from a federal court in Florida ending a 35-year-old injunction that had barred Medicare from releasing details of doctors’ billing practices. As a result of Dow Jones’s victory, the federal government has begun releasing some billing data, and The Wall Street Journal, other news organizations, and consumer groups have begun using the data to help Americans understand how Medicare spends the more than $70 billion it pays to physicians each year.

Learning how the government enforces our laws is no less important than learning how the government spends our money. Dow Jones is pursuing this effort to shine light on an otherwise shuttered corner of our federal judicial system.