Marshal’s Report of Findings & Recommendations Jan. 19, 2023: Investigation of Leak of Draft Majority Opinion Dobbs v. Jackson Women’s Health Org. Fails

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The Office of the Marshal Supreme Court of the United States on January 19, 2023 released a report of the leak of the Dobbs v. Jackson Women’s Health Org., No 19-1392 leak of the draft majority opinion.

There were 126 formal interviews of 97 employees, all of whom denied disclosing the opinion. The investigators determined that in addition to the Justices, 82 employees had access to electronic or hard copies of the draft opinion.

Full Report Dobbs Public Report January 19 2023
STATEMENT OF THE COURT CONCERNING THE LEAK INVESTIGATION & Marshal’s Report of Findings & Recommendations January 19, 2023 [PDF]

On May 2, 2022, Politico published a copy of the draft majority opinion in Dobbs v. Jackson Women’s Health Org., No. 19-1392. On May 3, 2022, the Chief Justice publicly announced that he had directed the Marshal to launch an investigation into the public disclosure of the draft majority opinion. On May 5, 2022, the Marshal initiated an investigation to determine who made the unauthorized disclosure of the draft majority opinion. The Marshal, in consultation with close advisors at the Court, developed an investigative plan of action. Investigators followed that plan, documented the course of their investigation, and reported the results. Section II of this report captures the material findings and recommendations. The investigative team consists of seasoned attorneys and trained federal investigators with substantial experience conducting criminal, administrative and cyber investigations.

The investigation has determined that it is unlikely that the Court’s information technology (IT) systems were improperly accessed by a person outside the Court. After examining the Court’s computer devices, networks, printers, and available call and text logs, investigators have found no forensic evidence indicating who disclosed the draft opinion.

If a Court employee disclosed the draft opinion, that person brazenly violated a system that was built fundamentally on trust with limited safeguards to regulate and constrain access to very sensitive information. The pandemic and resulting expansion of the ability to work from home, as well as gaps in the Court’s security policies, created an environment where it was too easy to remove sensitive information from the building and the Court’s IT networks, increasing the risk of both deliberate and accidental disclosures of Court sensitive information. The investigation has identified numerous Court policies and practices that should be improved

General Findings and Recommendations
At this time, based on a preponderance of the evidence standard, it is not possible to determine the identity of any individual who may have disclosed the document or how the draft opinion ended up with Politico. No one confessed to publicly disclosing the document and none of the available forensic and other evidence provided a basis for identifying any individual as the source of the document. While investigators and the Court’s IT experts cannot absolutely rule out a hack, the evidence to date reveals no suggestion of improper outside access. Investigators also cannot eliminate the possibility that the draft opinion was inadvertently or negligently disclosed – for example, by being left in a public space either inside or outside the building.

Assuming, however, that the opinion was intentionally provided to Politico by a Court employee, that individual was evidently able to act without being detected by any of the Court’s IT systems. If it was a Court employee, or someone who had access to an employee’s home, that person was able to act with impunity because of inadequate security with respect to the movement of hard copy documents from the Court to home, the absence of mechanisms to track print jobs on Court printers and copiers, and other gaps in security or policies.

The investigative team made general findings and recommendations for restricting and managing access to Court-sensitive materials, improving training, and improving IT capabilities. They are listed below. More detailed recommendations are included in Annex A, which, as previously noted, will not be made public. Many of these are underway and will be completed as soon as practicable.

1. Too many personnel have access to certain Court-sensitive documents. The current distribution mechanisms result in too many people having access to highly sensitive information and the inability to actively track who is handling and accessing these documents. Distribution should be more 19 tailored and the use of hard copies for sensitive documents should be minimized and tightly controlled.

2. Aside from the Court’s clear confidentiality policies and the federal statutes outlined above, there is no universal written policy or guidance on the mechanics of handling and safeguarding draft opinions and Court-sensitive documents, and practices vary widely throughout the Court. A universal policy should be established and all personnel should receive training on the requirements.

3. The Court’s current method of destroying Court-sensitive documents has vulnerabilities that should be addressed.

4. The Court’s information security policies are outdated and need to be clarified and updated. The existing platform for case-related documents appears to be out of date and in need of an overhaul.

5. There are inadequate safeguards in place to track the printing and copying of sensitive documents. The Court should institute tracking mechanisms using technology that is currently available for this purpose.

6. Many personnel appear not to have properly understood the Court’s policies on confidentiality. There should be more emphasis on training so that all personnel fully understand the policies.

7. Bills were introduced in the last Congress which would expressly prohibit the disclosure of the Supreme Court’s non-public case-related information to anyone outside the Court. Consideration should be given to supporting such legislation.

In time, continued investigation and analysis may produce additional leads that could identify the source of the disclosure. Whether or not any individual is ever identified as the source of the disclosure, the Court should take action to create and implement better policies to govern the handling of Court-sensitive information and determine the best IT systems for security and collaboration.

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