Ninth Circuit Procedures Take Secrecy to Silly Extremes

by Paul Alan Levy

Over at Techdirt, Tim Cushing points us to a bizzare situation in the Ninth Circuit rule in which the Reporters Committee for Freedom of the Press was required to file its amicus brief supporting EFF’s position in litigation over National Security Letters under seal.  The Reporters Committee’s announcement of its brief describes its arguments in general terms but does not link to its brief (given the fact that it has been filed under seal).

Perhaps we could understand the sensitivity of the contents of arguments about national security letters but the Reporters Committee notes that it has no inside information about the case and no access to the sealed papers in the case; so what just information could there be in its brief that could warrant imposition of a sealing requirement, even as a preliminary matter?

Consider this oddity: If the Reporters Committee had published an analysis of the litigation, it would have had every right to publish that analysis on its web site (because it contains no information obtained from the sealed files).  It could have done the same thing even if it called its analysis a brief, and put a case caption on it.  Yet as soon as it files that very same document with the Ninth Circuit, the court’s rules require censorship of the document.  Somehow the Ninth Circuit need to revisit its procedures to develop more sensible requirements.

The Ninth Circuit is not alone in this absurdity.  We faced similar concerns in litigating against Company Doe in the District of Maryland and again in the Fourth Circuit, where we represented would-be intervenors objecting to the secrecy in which litigation was being conducted.  The trial court required our papers to be filed under seal, and the Fourth Circuit’s rules did so as well; even though Scott Michelman had never seen any of the sealed material, he had to keep our briefs in the case under wraps, and perhaps out of an excess of caution we even refrained from blogging about the case, lest we be accused of revealing the substance of sealed papers.  

Should the Reporters’ Committee similarly be concerned that its web site’s description of its secret brief amounts to a contempt of the sealing orders in the case?