In Brooklyn last week, a federal magistrate judge refused to sanction the government’s effort to stop technology companies from telling customers when federal agents search their data. The Wall Street Journal reported over the weekend that U.S. Magistrate Judge James Orenstein shot down 15 different requests to impose gag orders on service providers because “they lacked enough information to judge whether the secrecy was warranted.”
Contrast Judge Orenstein’s approach with that of U.S. Magistrate Judge Peggy Leen in Las Vegas, who earlier this month temporarily granted the government’s request to prevent defense attorneys in the Cliven Bundy case from making public certain aspects of the prosecution’s case.
While Judge Orenstein leaned toward accountability and transparency, Judge Leen came down on the side of stealth and secrecy.
On Monday, the Review-Journal and other news organizations filed briefs arguing that Judge Leen’s gag order is unjustified and too expansive. Prosecutors claim that “cyberbullying” related to the high-profile case justifies this move, which they say will shield witnesses from possible retribution. But if online chest-thumping and bloated rhetoric is enough to trump the First Amendment, public scrutiny of the judicial system has been lost.
Yes, the Bundy matter and the Brooklyn decision represent two disparate cases, each with its own unique circumstances. But in both cases, the government should bear a significant burden to show why secrecy should prevail. Judge Orenstein held prosecutors to such a standard. Judge Leen appears far more willing to simply accept the government’s claims at face value.
Openness is a fundamental principal of justice. Unless the government can offer specific credible threats against potential witnesses, Judge Leen shouldn’t allow the condescending “nothing to see here” attitude of prosecutors to carry the day.