FAC Urges Appeal Court to Reject Excessive Secrecy of Search Warrants

The First Amendment Coalition filed an amicus brief in Electronic Frontier Foundation v. San Bernardino Superior Court; San Bernardino County District Attorney’s Office et al., No. 076778. You can read the brief here.

Court: California’s Fourth District Court of Appeal

About the case: The amicus brief is in support of the Electronic Frontier Foundation, which sought access to long-ago executed search warrants and affidavits to allow the public to understand how the San Bernardino County Sheriff’s Department seeks warrants to deploy an invasive type of surveillance called cell-site simulators or stingrays. The appeal concerns whether certain judicial records — in this case, the search warrant materials — can be permanently sealed long after the original reasons for that sealing have dissipated, and whether the public even has standing to challenge such sealing orders. As FAC’s brief explains, there is no law that precludes the public from challenging sealing orders at any stage of the judicial process, and the superior court must make the necessary findings sufficient to justify sealing. Search warrant materials are subject to public disclosure under the common law, state law and rules of court — all of which are bolstered by decisions finding a First Amendment right of access to judicial records, FAC’s lawyers wrote.

Our position: The Fourth District should reverse the San Bernardino Superior Court.

From the brief: “The Superior Court, and now Real Parties in Interest the San Bernardino County District Attorney and the San Bernardino County Sheriff, have taken a radical position: the orders sealing court records are sacrosanct and beyond the public’s ability to challenge,” FAC’s brief says. “Fortunately for those concerned about government transparency and accountability, that radical position is contrary to the law regarding public access to judicial records.”

The brief is by FAC Executive Director David Snyder, Litigation Director Glen Smith and Legal Fellow Monica Price. 

Date filed: Monday, Dec. 6, 2021

More: Read more about the case on EFF’s website (by Aaron Mackey Dave Maass) and view court additional case information here. Key court records: EFF’s appeal brief, San Bernardino DA and Sheriff’s appeal brief.


Update Sept. 15, 2022: The Fourth District Court of Appeal affirmed a lower court ruling rejecting Electronic Frontier Foundation’s petition to unseal search warrant affidavits. Read the opinion.

Update Nov. 23, 2022: FAC filed an amicus letter urging the California Supreme Court to grant EFF’s petition for review in the case. Read the letter, joined by the Northern California Chapter of the Society of Professional Journalists.