The D.C. Circuit Court of Appeals affirmed a district court's partial denial of unsealing Department of Justice applications for non-disclosure orders under the Stored Communications Act, in a decision that balances government surveillance secrecy against public transparency rights.
In *In re: Application of the United States for an Order Pursuant to 18 U.S.C. 2705(b)*, decided Feb. 3, 2026, the appeals court ruled that Empower Oversight Whistleblowers & Research could not compel greater disclosure of DOJ applications that allow the government to conduct digital surveillance without notifying targets.
The case centers on the Stored Communications Act's section 2705(b), which permits courts to issue non-disclosure orders preventing service providers from informing customers that law enforcement has requested their digital communications or records. These orders are designed to protect ongoing investigations by ensuring targets remain unaware of government surveillance.
Empower Oversight, a nonprofit organization founded by Jason Foster and dedicated to enhancing government oversight, filed a motion in May 2024 to intervene in a closed grand jury proceeding and sought unsealing of the DOJ applications. The organization argued the applications were judicial records subject to common law and First Amendment access rights.
The D.C. Circuit panel, consisting of Chief Judge Sri Srinivasan, Circuit Judge Childs, and Senior Circuit Judge Rogers, heard oral arguments on Nov. 18, 2025. Senior Circuit Judge Rogers authored the opinion for the court.
Empower's legal team, led by attorneys Brian J. Field and Joshua J. Prince, contended that the district court abused its discretion by maintaining sealing of the applications. They argued the documents should be treated either as judicial records with presumptive public access or as ancillary grand jury records that lost their protected status due to public disclosures.
The Justice Department, represented by Assistant U.S. Attorney Eric Hansford and a team including U.S. Attorney Jeanine Ferris Pirro, defended the continued sealing. The government's position emphasized the need to protect ongoing investigations and the integrity of the surveillance process.
The appeals court's decision largely upheld the district court's reasoning that the competing interests in this case weighed against broader disclosure. The court found no abuse of discretion in the lower court's balancing of transparency interests against law enforcement needs.
However, the D.C. Circuit included a limited remand provision, directing the district court to consider whether to allow Empower to amend its unsealing motion in light of a December 2024 report from the Justice Department's Office of Inspector General. This development suggests the inspector general's findings may have relevance to the public interest analysis underlying disclosure decisions.
The Stored Communications Act applications at issue represent a significant tool in federal law enforcement's digital investigation arsenal. Non-disclosure orders under section 2705(b) allow investigators to obtain electronic communications and records from service providers while keeping targets unaware of the surveillance, potentially for extended periods.
The tension between surveillance secrecy and public accountability has intensified as digital communications have become central to both criminal investigations and civil liberties concerns. Courts must regularly balance the government's legitimate need for investigative secrecy against the public's interest in understanding how surveillance powers are being used.
Empower Oversight's intervention attempt reflects broader efforts by transparency advocates to shed light on government surveillance practices. The organization has previously sought disclosure of various government records related to oversight and accountability issues.
The case also illustrates the complex relationship between grand jury secrecy rules and other forms of judicial sealing. Empower argued that any connection to grand jury proceedings had been severed by public disclosures, which would remove certain secrecy protections under Federal Rule of Criminal Procedure 6(e)(6).
The D.C. Circuit's decision preserves the district court's discretionary authority to manage disclosure of sensitive law enforcement records while leaving open the possibility for renewed challenges based on new information from the inspector general's review.
This ruling may influence future cases involving public access to surveillance-related court records, particularly as transparency advocates continue challenging government secrecy in digital privacy contexts. The decision reinforces courts' traditional deference to law enforcement secrecy concerns while maintaining some avenue for transparency arguments.
The limited remand provision suggests the appeals court recognizes that evolving circumstances, such as inspector general findings, may alter the balance of interests that determines whether judicial records should remain sealed.
For government surveillance practices, the decision maintains status quo protections for non-disclosure applications while acknowledging that oversight revelations could potentially shift the transparency calculus in future proceedings involving similar records.