US Federal Magistrate judge Stephen William Smith sounds the alarm about the skyrocketing trend of US courts operating in secret, with their findings (or even the fact that they're hearing a case at all) sealed to scrutiny, and an ever-increasing portion of judicial action taking place in off-record arbitration.
Smith estimates that US courts are issuing a half-million secret surveillance orders per year, while the number of completely sealed civil cases and cases whose records are heavily redacted, or have a "substantial number of sealed filings" are mounting, though no accurate records are kept on the total number, "because the numbers would likely have been too large to tabulate in any meaningful way." The number one case name in the DC Circuit of Appeals docket is In re Sealed Case — the first sealed case only having been filed in 1981.
As Smith points out, this has real consequences: how you can you know if the law is dealing with you in a fair and even-handed manner if you don't know how it deals with everyone else, especially the wealthy people who can hire fancy lawyers to successfully argue for sealed records?
That traditional aversion to court secrecy has been overcome in the last few decades. To take but one example, the case name In re Sealed Case first appeared in 1981; it is now the most common case name on the D.C. Circuit Court of Appeals docket. Another telling sign is that the government is far more aggressively (and successfully) asserting evidentiary privileges than ever before. This includes well-established privileges like state secrets, and brand new ones like the privilege for investigative techniques and procedures. Unsurprisingly, the brainchild behind this particular privilege was J. Edgar Hoover himself, the godfather of the "black bag" job and other illicit techniques. (The story behind this privilege is told here.) Hoover's privilege is often invoked to limit court testimony about technological tools routinely used by law enforcement, such as cell site simulators (Stingrays).
My concern is not merely that a velvet curtain is being drawn across wide swaths of traditionally public judicial business. Over the last 30 years, with Supreme Court enabling, much of that traditional judicial business has been outsourced to private arbitrators and non-public "dispute resolution" mechanisms. Employers, Internet service providers, and consumer lenders have led a mass exodus from the court system. By the click of a mouse or tick of a box, the American public is constantly inveigled to divert the enforcement of its legal rights to venues closed off from public scrutiny. Justice is becoming privatized, like so many other formerly public goods turned over to invisible hands — electricity, water, education, prisons, highways, the military.
[Stephen Wm. Smith/Just Security]