Are US courts going dark?

[Winehole23]

In 1978, Congress created the first secret court in our history — the Foreign Intelligence Surveillance Act (FISA) court. Staffed by Article III judges borrowed from federal district courts, this specialized tribunal issues surveillance warrants for foreign intelligence purposes. Understandably, given its mission, FISA court proceedings are ex parte and mostly secret, although the Snowden revelations in 2013 forced a partial lifting of the veil.


While the FISA court remains the only congressionally authorized secret court in our nation’s history, secret dockets are another matter. In 1986, Congress enacted the Electronic Communications Privacy Act (ECPA) to regulate government access to our cell phone and Internet communications and records. This law authorized court orders compelling such access to be sealed indefinitely, “until further order of the court”; in practice, this has meant that these surveillance orders are permanently sealed. Moreover, these orders are routinely accompanied by gag orders forbidding the provider from telling customers that the government has read their emails or tracked their cell phones. (This has become a customer relations headache for providers like Microsoft, who sued last month to have ECPA’s gag provision declared a prior restraint of speech in violation of the First Amendment.)


How large is this secret ECPA docket? Extrapolating from a Federal Judicial Center study of 2006 federal case filings, I have estimated that more than 30,000 secret ECPA orders were issued that year alone. Given recent DOJ disclosures, the current annual volume is probably twice that number. And those figures do not include surveillance orders obtained bystate 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. Admittedly this is a guess; no one truly knows, least of all our lawmakers in Congress. That is precisely the problem.


These breathtaking numbers have no precedent in our legal history. Before the digital age, executed search warrants were routinely placed on the court docket available for public inspection. The presumption was that the public should be able to monitor the level of governmental intrusion into the “persons, houses, papers, and effects” of its citizens. Apparently, that presumption does not apply to government intrusion upon our digital lives.

https://www.justsecurity.org/30920/courts-going-dark/

[Winehole23]

Given the prevalence of the practice today, one easily forgets how new it all is. For most of our history, records of judicial proceedings were always accessible to the public, a practice inherited from English common law courts. Limited exceptions only began to appear around the turn of the 20th century, mostly in divorce, adoption, or juvenile proceedings. In 1915, the Supreme Court first encountered a judicial sealing order, which Justice Holmes denounced as “a judicial fiat” having “no judicial character” and “in excess of the jurisdiction of the lower court” before granting a writ of mandamus to revoke it.

[Winehole23]

My concern is not merely that a velvet curtain is being drawn across wide swaths of traditionally public judicial business. Over the last 30 years, with Supreme Court enabling, much of that traditional judicial business has been outsourced to private arbitrators and non-public “dispute resolution” mechanisms. 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.

[boutons_deux]

Combine the above with the collaspe of public defender system in many state

Our Rickety Public Defense System Has Finally Collapsed.

http://www.thenation.com/article/our...how-to-fix-it/

and

Judicial Vacancies

http://www.uscourts.gov/judges-judge...cial-vacancies

... just another way America is ed (intentionally) and un able.