The First Amendment guarantees a broad right of access to court records. EFF is asking the California Court of Appeal to make clear that this right allows the public to access wiretap applications and court orders after the underlying investigations have closed. As EFF has argued in court, this right is an essential tool to allow public oversight of how wiretap orders are issued. In the alternative, EFF is arguing to the court that, under California law, individuals who have been wiretapped have a right to inspect the records associated with the wiretap application and court order whenever it is in the interests of justice for them to do so.
Public oversight of wiretap authorizations is particularly important in light of the grossly disproportionate volume of wiretaps issued from the Riverside County Superior Court, which for several years approved three times as many wiretap orders as any other state or federal court, and at one point accounted for almost twenty percent of the wiretap orders issued nationwide. After a series of stories in USA TODAY questioned the legality of the surveillance, watchdogs said that the wiretaps likely violated federal law. It was during this time period that the Riverside County Superior Court authorized the wiretaps at issue in this case.
Back in 2015, we brought this case on behalf of two individuals with no criminal record—one of whom is a retired California Highway Patrol officer—who sought the applications and orders justifying wiretaps of their phones. These were just two targets of hundreds of questionable wiretaps authorized by a single judge, Helios J. Hernandez, in Riverside County. In the Superior Court, EFF co-counseled with Sheppard, Mullin, Richter & Hampton, LLP to represent the targeted individuals. The individuals had never been charged and had never received any notification that they were the subject of a wiretap order, despite the law requiring such notice within 90 days of the wiretap’s conclusion. Instead, they only learned about the wiretaps from friends and family who did receive notification.