Deeplinks
The public should get to see whether a court that authorized the FBI to track someone’s air travels in real time for six months also analyzed whether the surveillance implicated the Fourth Amendment, EFF argued in a brief filed this week.
In Forbes Media LLC v. United States, the news organization and its reporter are trying to make public a court order and related records concerning an FBI request to use the All Writs Act to compel a travel data broker to disclose people’s movements.
Forbes reported on the FBI’s use of the All Writs Act to force the company, Sabre, to disclose a suspect’s travel data in real time after one of the agency’s requests was unsealed. The All Writs Act is not a surveillance statute, though authorities frequently seek to use it in their investigations. Perhaps most famously, the FBI in 2016 sought an order under the statute to require Apple to decrypt an iPhone by writing custom software for the phone.
But when Forbes sought to unseal court records related to the FBI’s request to obtain data from Sabre, two separate judges ruled that the materials must remain secret.
Forbes appealed to the U.S. Court of Appeals for the Ninth Circuit, arguing that the public has a presumptive right to access the court records under both the First Amendment and common law. EFF, along with the ACLU, ACLU of Northern California, and Riana Pfefferkorn, filed a friend-of-the-court brief in support of Forbes’ effort to unseal the records.
EFF’s brief argues the public has the right to see the court decisions and any related legal arguments made by the federal government in support of its requests because court dec
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