Following a recent hearing in the ongoing Jewel v. NSA case, in which the Electronic Frontier Foundation is challenging NSA's ability to surveil foreign citizen's U.S.-based email and social media accounts, the government informed U.S. District Court Judge Jeffrey White it believed one of its attorneys mistakenly revealed classified information.
The government then requested that the select portion of the hearing's public transcript be secretly deleted without alerting the public to the alteration. According to the EFF, the open courtroom case - which has been steadily picking up media coverage following NSA leaker Edward Snowden's bulk surveillance revelations - was "widely covered by the press" and "even on the local TV news on two stations."
"We rightly considered this an outrageous request and vigorously opposed it," senior staff attorney for the EFF David Greene said in a statement. "The public has a First Amendment right not only to attend the hearing but to have an accurate transcript of it. Moreover, the federal law governing court reporting requires that 'each session of the court' be 'recorded verbatim' and that the transcript be certified by the court reporter as 'a correct statement of the testimony taken and the proceedings had.'"
The government made no attempt to close the courtroom prior to the hearing, and one week after, sent a letter to Judge White asking to review the transcript, and at the request of NSA, delete any part of the transcript revealing information the signals intelligence agency deemed classified without alerting the public, plaintiffs, or their lawyers.
Judge White disregarded the government's request for secrecy and sent a letter to the plaintiffs' attorneys the next day notifying them of the government's attempt, and offered them a chance to respond.
"We asked Judge White to reject the government's request in full arguing that the government could not meet the strong First Amendment test to prove that its revisions to the transcript were 'essential to preserve higher values and narrowly tailored to serve that interest,' Greene wrote. "We also argued that under no circumstances should the government be able to 'remove' anything from the transcript without indicating that something has in fact been removed, a process commonly called 'redaction,' not 'removal,' the term used in the government's request. We also asked the court to unseal all of the papers that had been filed about this dispute."
