- The Washington Times - Tuesday, April 28, 2020

Federal judges expressed skepticism Tuesday about the Justice Department’s bid to keep secret the details of a court order to compel Facebook to wiretap voice calls on its Messenger app.

The U.S. Court of Appeals for the 9th Circuit heard oral arguments in the dispute between the American Civil Liberties Union, which is seeking to unseal the order issued by a lower court judge, and the Justice Department, which maintained that releasing the order would disclose sensitive information.

Technology companies are closely watching the case, hoping the disclosure of the judge’s opinion will reveal how far the Justice Department plans to pressure them to wiretap private individuals.

Justice Department attorney Scott Meisler maintained the order was issued in a sealed court proceeding and releasing it could harm the government’s interest in a criminal case.

But the three-judge panel appeared unmoved.

“To the extent legal analysis does not implicate the details of the government investigation … I have some trouble understanding why that shouldn’t be made public,” said Judge Margaret McKeown, a Clinton appointee.

Judge Jacqueline Nguyen agreed, calling the public interest “fairly substantial.”

The Justice Department in 2018 filed a motion seeking to slap Facebook with a contempt order if it did not wiretap the app. At the time, federal investigators were probing international criminal gang MS-13.

A U.S. District Court judge in Fresno, California, heard oral arguments in the case but declined to hold Facebook in contempt. Both the judge’s reasoning and the Justice Department’s legal argument were sealed.

The ACLU had filed a lawsuit seeking to publicly disclose the order, arguing that portions of the case are no longer private.

“This investigation is something that is a matter of public record and anybody who was colluding with or conspiring with these defendants already knows that there was an investigation and that these people were indicted and what the claims are,” said ACLU Attorney Jennifer Granick.

Mr. Meisler fired back that even if certain portions of sensitive cases were revealed, the court should refrain from revealing other information that could expose government investigative techniques.

Judge McKeown appeared unconvinced, questioning why the public should be shielded from the legal analysis applied by the lower court and whether the judge’s order even disclosed sensitive information.

“Why is this kind of opinion sealed?” she asked.

Mr. Meisler urged the judges to at least redact portions of the 2018 judicial order if they ruled against the Justice Department.

The oral arguments were held over video conferencing because of the coronavirus crisis.

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