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Supreme Court lacks basic security over documents and emails, report says

By Sarah May
|
February 6, 2023

In the wake of frustration at a report from the U.S. Supreme Court declaring its inability to identify the leaker of an unpublished draft opinion that ultimately led to the reversal of Roe v. Wade, new revelations suggest that security vulnerabilities at the venerable judicial institution are worse than many realized, according to exclusive reporting from CNN.

Details of the lax protocols at the high court come after the Court announced in January that despite following every lead and engaging in forensic analysis of operations, “the team has to date been unable to identify a person responsible by a preponderance of the evidence,” for the leaked draft in the Dobbs v. Jackson Women's Health Organization case, as NBC News explained.

Fruitless probe

Disappointment emerged on both sides of the aisle when the high court made public the results of its probe into the Dobbs leak, which itself unleashed an onslaught of volatile demonstrations and threats of violence against justices from those opposed to the upending of abortion precedent that the draft appeared to portend.

According to the high court's report of its investigation, the process was limited primarily to activities within the Supreme Court building and those who work within it, a subtle admission that conduct occurring elsewhere or on devices not located inside the Court's confines was not examined.

Notably, the report made clear that the justices themselves were not under the scrutiny of the probe, and it was only the Court's permanent employees and temporary law clerks whose actions were reviewed.

According to Supreme Court Marshal Gail Curley, tapped with overseeing the investigation, all of the 97 employees interviewed in the probe denied leaking the draft opinion, and the report also found that the courts information technology systems showed no evidence of tampering.

Vulnerabilities abound

As NBC News further noted, the Court's report on the probe declared that a total of 82 employees – excluding the justices themselves – had access to the draft Dobbs opinion, either in hard copy or electronic form.

Some of those interviewed acknowledged that “they did not treat information relating to the draft opinion consistent with the court's confidentiality policies, with some admitting to having spoken with their spouses about it in advance of it having gone public.

Those subject to the purview of the probe were asked to sign affidavits stating that they were not involved in leaking the draft opinion and reminded that false statements in that regard could subject them to criminal penalties.

Curley noted, however, that there were definite limits on how useful the interviews could actually be and said that “very few of the individuals...were willing to speculate on how the disclosure could have occurred or who might have been involved.”

Bombshell revelations

Sources familiar with the court's internal operations spoke to CNN for a report published this weekend and offered alarming insights into security failures that have persisted for years and which may not only have facilitated the aforementioned leak, but also hampered later attempts to identify the individual responsible for it.

Among the jarring lapses that were permitted to fester at the Court over the years, according to those who spoke to CNN, was the practice among justices of using personal email accounts to send sensitive materials, rather than transmitting documents via existing secure servers.

In addition, the sources revealed that Court employees regularly used printers that did not reliably generate user logs, and numerous employees had the ability to print documents remotely from any printer, making such activity nearly impossible to track.

Disturbingly, CNN's sources also detailed the manner in which so-called “burn bags” used to contain sensitive materials destined for destruction by fire or paper shredder were left gaping open or in areas accessible to many.

Critics sound alarm

The sources' allegations that these lax practices have been “going on for years” and that the justices have never been “masters of information security protocol” will likely only spur additional criticism from those already outraged by last summer's leak and the Court's failure to identify the leaker.

Richard Garnett, a professor at the University of Notre Dame School of Law, told NBC News, “I worry that the failure to identify the leaker will contribute not only to various partisan speculations but also a reduction in the collegiality among the justices and court staff.”

Gabe Roth, executive director of liberal judicial ethics advocacy group Fix the Court opined, “This, to me, is another missed opportunity for SCOTUS. I think the reputation of the court will continue to suffer until they change course.”

Republican Sen. Josh Hawley (MO), for his part, expressed concern over the potential future fallout of the anti-climactic report, saying, “This is inexcusable. And it means brazen attempts like this one to change the court's decisions – from within – will become more common.”