Editor's Note: This is a copy of the briefing as it went out to subscribers of What's Next. After it was sent, the hearing mentioned in the top item, “Watch This Space: Sealed Now…and Forever?” was moved from May 3 to August 16.

Hello What's Next readers and welcome to another update on the future of law. This week, we look at a case that could pull back the curtain on U.S. government digital surveillance and get an update on the Net Neutralitywars. Plus, we check in with what's happening in that “insider trading” case against Coinbase, and get a pretty gruesome dose of dystopia.

Tips? Event announcements? Thoughts on whether a merged T-Mobile/Sprint should stick with a pink logo? (My vote: Yes.) Drop me a line over email at [email protected] or on Twitter: @benghancock.

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Watch This Space: Sealed Now…and Forever?

The Apple-FBI fight over encryption was a rare event. Most of the time, the public never has a clue when authorities come knocking and ask a company for “technical assistance” to help get access to digital communications. That makes the true scale of U.S. government surveillance hard to assess—even if we can glean that it's pervasive nowadays. And probably equally as important, it doesn't really allow the public to tell just how difficult it is for prosecutors to convince a judge that communications should be turned over.

That information black hole is what motivated the lawsuit filed by ACLU attorney Jennifer Granick and Stanford Law cryptography expert Riana Pfefferkorn. They want to unseal cases in the Northern District of California—where Apple, Google, and other giants of Silicon Valley are headquartered—in which technical assistance was sought by authorities between 2006 and 2011. And this week, we may see whether there's a chance that the effort will meet success.

On Thursday, May 3, U.S. Magistrate Judge Kandis Westmore is expected to give some insight into whether she's open to setting up a process to help determine which cases are still validly sealed and those that can now be thrown open to the public. It would be a massive administrative undertaking, to be sure. But Granick and Pfefferkorn argue that even if it's hard to do, that doesn't overcome the public's right to know under the law.

“An unintentional by-product of local court practices and federal surveillance statutes is that the surveillance dockets of federal courts around the country typically remain under seal indefinitely, long past any need for secrecy,” Pfefferkorn told me. “That situation, while inadvertent, contravenes the press and public's rights to access the courts. Our petition aims to correct that.”

The challenge now is a case out of the D.C. District Court called In re Leopold,in which a Buzzfeed journalist named Jason Leopold sought to unseal almost 20 years' worth of cases involving digital communications surveillance. Leopold and the Reporters Committee for Freedom of the Press were able to get a fair amount of data through that lawsuit. But in February, the chief judge of the D.C. District Court ruled that giving them everything they asked for would put an “unduly significant” burden on prosecutors and the clerk's office.

“We understand that our request presents a challenge, but we disagree with the Leopold court that the challenges of unsealing are dispositive,” Granick and Pfefferkorn write in their latest brief. They argue that Ninth Circuit law is different than in D.C., and that the Leopold case is distinguishable from their own in terms of the work it would require. At the same time, they say they're open to narrowing their petition to make it feasible.

As you might imagine, the local U.S. attorney's office is not super ampedabout the idea of unlocking years' worth of sealed dockets. It says the office—in cooperation with the court clerk—has already made some prospective changes to make it easier to track and unseal cases in the future. “The litigation in Leopold teaches that unsealing or docketing of historical matters is an unduly burdensome process,” Assistant U.S. Attorney Kyle Waldinger wrote.

>> Think Ahead: There's always going to be inherent tension between effective law enforcement investigations and the public's right to know. But this seems different—a problem of just having too much data, too many court files. This case may test whether having mountains of records means that certain facts are simply consigned to being forgotten.

Keeping Neutral: CA Pushes Open Internet Bill

When it comes to picking a president, Ohio may be a decisive state. But determining the future of the internet? Hey, it's all California.

I've written here before about measures in Oregon, Washington and even Montana that aim to preserve net neutrality after the FCC gave the open internet rule the ax. But none may be as influential as the one currently being considered by California's state legislature.

“I would think CA would be a sort of line in the sand for opponents,”says my colleague Cheryl Miller in Sacramento, who covers regulation for Law.com. “With its size, if they lose here, what's the point of fighting it elsewhere?”

Last week, SB 822 cleared its latest hurdle as it was passed out of the state Senate Judiciary Committee. The new version of the bill would give the state's attorney general the sole authority to bring enforcement actions over breaches of net neutrality. A prior iteration would have allowed lawsuits by district attorneys and city attorneys as well.

The telecom and cable companies are railing against the bill, and have openly threatened litigation against states that resurrect net neutrality. But Cheryl notes that as blue as California may be, companies may still have a chance at beating back the proposal.

“The Senate is generally the friendlier house for so-called consumer protection bills,” she tells me. “It'll be interesting to see if the opponents … make a big push to kill it on the Senate floor or if they wait until it gets to the traditionally less friendly Assembly.”

>> Think Ahead: As the LA Times puts it, the telcos “must be wondering if they didn't outsmart themselves” in killing net neutrality at the federal level. Amid a quickly emerging patchwork of laws, this fight seems likely to wind up in court. Unless there's a secret game plan in Congress?

Listen Up: The GDPR Is Changing Legal Practice

If you haven't had a chance to yet, make sure to listen to my latest podcaston how the GDPR has changed—and will continue to change—how privacy lawyers practice. I speak with Kolvin Stone, a London-based privacy lawyer with Orrick, Herrington & Sutcliffe; Debbie Reynolds, an e-discovery expert with EimerStahl Discovery Solutions in Chicago; and Jeewon Serrato, the San Francisco-based head of Shearman & Sterling's privacy and data protection group.

A few key takeaways? Lawyers are becoming more “business advisors” to help companies comply with privacy rules in a practical way, and they're also going to need to work more closely with software engineers. Plus, e-discovery is getting more complicated. Yes, more.

Download on Apple Podcasts, Google Play, or Libsyn.

Protocol: About That BCH “Insider Trading”…

Coinbase, one of the largest cryptocurrency exchanges, was hit in March with allegations that its employees and other insiders reaped huge gains by trading on nonpublic information that the exchange planned to support transactions in a Bitcoin offshoot called Bitcoin Cash (BCH).

The company last week filed its motion to dismiss the class action. In it, Coinbase's lawyers at Keker, Van Nest & Peters ask: What's so illegal about that?

“[E]ven if Coinbase did give its employees some advantage, Plaintiff does not, and cannot, point to any public policy … requiring a private business to ensure that the public has equal access to its products as its own employees,” wrote defense attorney Steven Ragland.

>> Takeaway: It's an interesting development in a case that tries to make insider-trading type claims in an industry lacking certainty about how existing financial regulations apply. But we may not see how it all plays out; Coinbase has also filed a motion to compel arbitration.

Dose of Dystopia

The dead have no privacy rights. That's the grim takeaway from this article by Ars Technica's Cyrus Farivar about Florida police attempting to use the fingers on a dead man's body to unlock his smartphone. (It didn't work.)

The deceased, 30-year-old Linus Phillip, was reportedly killed during an altercation with police after a traffic stop. Days later, detectives showed up at the funeral home in Clearwater where his body was being kept. The victim's fiancee, who was there at the time, told the Tampa Bay Times she felt “disrespected and violated” that officers were able to manipulate her fiance's body in this way.

Yet attorneys told Ars that the tactic was probably legal — though also “ghoulish” and “grotesque.” To me, it seems like another example of how technology changes the whole context for law enforcement. In the past, officers might have searched pockets for a house or car key. That doesn't have quite the same feeling as using someone's body part, does it?

That's it for this week. Keep plugged in with What's Next!