Chief Judge Phyllis Hamilton, U.S. District Court for the Northern District of California (Photo: Jason Doiy/ALM)

Thousands of documents related to government surveillance operations will remain out of public view after a ruling from Chief Judge Phyllis Hamilton of the U.S. District Court for the Northern District of California.

Hamilton denied a petition from Jennifer Granick of the American Civil Liberties Union and Riana Pfefferkorn of the Stanford Center for Internet and Society to unseal 13 year's worth of technical assistance orders and materials.

The goal of the petition was to uncover how the government uses search warrants, wiretap applications, pen registers, disclosure orders and All Writs Act orders in its surveillance operations, sometimes sweeping up data from tech and social media companies during investigations.

In her order affirming a December report and recommendation from a magistrate judge, Hamilton said the public does not always have a First Amendment right of access to warrant materials when an investigation ends or an indictment is filed—an issue that has split district courts in the past. In particular, Hamilton took issue with the scope of the petition from Granick and Pfefferkorn.

“No court has recognized a First Amendment right of access, as Petitioners assert here, to a broad, unidentified set of historical search warrant materials, outside the context of an individual case or investigation,” Hamilton wrote in the order.

Hamilton said the process of unsealing the records would be unduly burdensome on multiple levels. For starters, the court's Case Management/Electronic Case Files system, or CM/ECF, does not have the ability to accurately filter for a particular category of surveillance or technical assistance materials. Additionally, each record would require an individual judicial determination to be unsealed. Hamilton also found the administrative toll of processing all of the documents negated the surveillance and cybersecurity experts' common law right of public access.

“The court determines that the common law right of access to post-investigative search warrant materials is overcome by these considerations of significant manpower and public resources that would be expended just to identify and produce the subset of search warrant materials sought by Petitioners and to protect the significant governmental and individual interests implicated in those materials,” she wrote.

The petition also called for a new rule requiring that all surveillance applications be entered on CM/ECF and regular court reviews of sealed dockets to unseal eligible documents. Hamilton said policy changes of this magnitude are not made by “one judge, not even the chief judge, but rather by the entire court.”

In a Stanford CIS blog post, Pfefferkorn said she found hope in the opinion. “For one, the court rejected the government's unfounded attempt to argue that we lack standing to seek to unseal these records at all,” she wrote. “It is well-established that members of the public have standing to seek to unseal sealed court records, and the court refused to depart from that settled law. Also, the court declined to address the government's novel and dangerous argument that administrative burden can trump a constitutional right of access (as opposed to a common-law right, which is not as robust). There is no legal support for that assertion and I am glad the court did not waste time entertaining it.”

Pfefferkorn told The Recorder that she and Granick are reviewing options for next steps.