Judge sets Facebook hearing status to 'private'--hmm

Kicking the public out of a courtroom is an option that should be used rarely, and extremely judiciously, which is what makes U.S. District Judge James Ware's decision Monday disappointing.

Ware shuttered the doors to a San Jose, Calif., hearing pitting Facebook and Mark Zuckerberg, probably the world's youngest self-made billionaire, against Harvard University classmates who claim Zuckerberg stole ideas and source code from a similar venture called ConnectU. Ware took this extraordinary step without notice, without a formal request from either side, and without even specifying why it was necessary.

This is at odds with the law of the land--it views courtroom closings as extraordinary events--which is why CNET News.com is evaluating whether to file papers seeking access. Not only should the courtroom not have been closed, but any audio recording or transcript of the proceedings should be released.

It is long-established precedent in the 9th U.S. Circuit Court of Appeals, which is binding in San Jose, that two requirements be met before the public can be barred. First, the public and the press must be given "a reasonable opportunity to state their objections." Second, the "reasons supporting closure must be articulated."

Those requirements were conspicuously absent from Monday's hearing. Neither side formally asked Ware to bar the public. When he asked if there were objections -- and representatives of three different news organizations asked the hearing be delayed to give us a reasonable opportunity to raise them--Ware dismissed the idea. He said only that booting out everyone but the lawyers would be "beneficial" (for whom?).

No less an authority than the U.S. Supreme Court described the presumptive First Amendment right to access court proceedings thusly: "The presumption may be overcome only by an overriding interest based on findings that closure is essential to preserve higher values, and is narrowly tailored to serve that interest. The interest is to be articulated along with findings specific enough that a reviewing court can determine whether the closure order was properly entered."

Ware certainly has experience dealing with complicated technology cases. He showed he was sensitive to civil liberties in his response to the Justice Department's demands to Google. He's presided over spam lawsuits, the RealNetworks case, and the Sex.com lawsuit.

In this case, Facebook got the courtroom closing it wanted, apparently without even having to ask the judge for it. The likely reason for the closure is that ConnectU recently learned of the existence of instant messaging logs from Zuckerberg's computer dating back many years. Facebook attorney Neel Chatterjee of the Orrick law firm has been insistent on keeping these and scores of other documents confidential--the phrase "under seal" now appears no fewer than 234 times in the official court docket.

No doubt Chatterjee is zealously protecting Zuckerberg's interests. But it is unusual for any attorney to claim that so many documents are highly confidential, which prompted ConnectU to request that the judge "limit materials filed under seal." In that and continued public access to proceedings in this case, satisfying the appearance of justice demands no less.