Forbes Media LLC v. United States

FORBES MEDIA LLC, et al., Plaintiffs, v. UNITED STATES OF AMERICA, Defendant.

No. 21-mc-80017-TSH

United States District Court, N.D. California

April 26, 2021

REPORT AND RECOMMENDATION TO DENY PETITION; ORDER REASSIGNING CASE TO A DISTRICT JUDGE

RE: DKT. NOS. 1, 14

THOMAS S. HIXSON, UNITED STATES MAGISTRATE JUDGE

I. INTRODUCTION

Pending before the Court is Petitioners Thomas Brewster (“Brewster”) and Forbes Media LLC's (“Forbes'”) (collectively the “Petitioners”) Application to Unseal Court Records (“Application” or “Appl.”) and a Memorandum of Points and Authorities in Support of the Application (“Appl. Mem.”). ECF No. 1. Defendant United States of America (the “Government”) filed an Opposition to the Application (“Opp.”) (ECF No. 12) with a Statement of Facts submitted separately to the Court under seal. Petitioners filed a Reply (“Reply”) (ECF No. 13) and a Motion to Unseal the Government's Statement of Facts (“Motion to Unseal”), ECF No. 14, which the Government opposes. ECF No. 16. For the reasons stated below, the Court RECOMMENDS that the petition be denied and orders the case REASSIGNED to a District Judge.

II. BACKGROUND

Brewster is a journalist and associate editor for Forbes and covers security, surveillance, and privacy. Declaration of Brewster in Support of Application (“Brewster Decl.”), ECF No. 13-1, ¶ 2. He states in his declaration that on March 10, 2020, using PACER, he identified and downloaded from the publicly available electronic docket an Order under the All Writs Act, 28 U.S.C. § 1651 (the “AWA” or the “Act”) that was filed in case number 19-cr-4643 in the U.S. District Court for the Southern District of California, though what Petitioners attach to their petition is just the application for an order (the “SDCA Application”). Brewster Decl., ¶ 2; Appl., Ex. 1. The SDCA Application referred to a previous order under the AWA, docketed in the Northern District of California in CR-16-90391 MISC EDL, that required Sabre, a travel technology firm, to assist the United States Government in effectuating an arrest warrant (hereinafter, the “AWA Order”). See Appl., Ex. 1 at p. 4.

Brewster reported on the contents of the SDCA Order in an article titled “The FBI Is Secretly Using a $2 Billion Travel Company as a Global Surveillance Tool, ” Forbes (July 16, 2020), https://perma.cc/R96R-AXL9 (“Brewster Article”). Brewster Decl., ¶ 3. Petitioners state that the Brewster Article has contained a live link to the SDCA Application since it was published in July 2020. Id., citing All Writs Act Order on Sabre to Give Real Time Updates on Travel of Suspect, DocumentCloud, https://perma.cc/A8EJ-HEZY (last visited Feb. 17, 2021). Brewster states that the order no longer appears to be listed on the publicly available docket for case number 19-cr-4643. Brewster Decl., ¶ 4, Ex. 1.

The Government states that the SDCA Application and Order were sealed when they were entered, were mistakenly unsealed for a brief period in early 2020, but are currently subject to seal. Opp., p. 3. Petitioners apparently retrieved the SDCA Application and Order during the temporary mistaken unsealing. Id.

On January 25, 2021, Forbes and Brewster filed this Application to request access to the AWA Order in CR-16-90391 MISC EDL. See Appl. Specifically, Petitioners have asked the Court to unseal (1) the AWA Order at issue; (2) the Government's application for the AWA Order and any supporting documents; (3) any other court records relating to the AWA Order; and (4) the docket in case number CR-16-90391 and all docket entries (collectively, the “AWA Materials”). Id.

In support of their request, Petitioners assert that “[t]he government's use of the AWA to obtain judicial orders requiring private technology firms in general, and Sabre in particular, to provide technical assistance to the government is a matter of intense public interest, as well as a subject of Petitioners' reporting.” Appl. ¶ 4; Brewster Article. Petitioners state that they, like all members of the public and the press, “have a strong interest in observing and understanding the consideration and disposition of matters by the federal courts, ” Appl. ¶ 3, and “[t]hat interest is heightened when the action of the Court concerns actions taken by the executive branch.” Id. Petitioners also state that the public and the press “have a particularly strong interest in access to court records that would shed light on the government's collection of location records, which ‘hold for many Americans the privacies of life, '” id. ¶ 5, and that “[t]he disclosure of such information to the government implicates a range of weighty constitutional and policy interests, including reporter-source confidentiality.” Id. As a result, Petitioners assert, “the public and press have a keen interest in understanding the government's basis for seeking an AWA order directing Sabre to provide it with contemporaneous travel information about a targeted individual, as well as the district court's basis for issuing such an order.” Id.

The Government declines to confirm the existence of the AWA Materials in an unsealed filing because, if they exist, they were considered “worthy of being sealed” by the Court and remain under seal by Court Order. Opp. p. 4. The Government asserts, however, that if any such AWA Materials do exist, they “could have identified one or more persons who were the subjects of an arrest warrant and described actions that the Government wanted take to execute one or more warrants.” Opp. p. 5. The Government asserts that, as of the date of its filing on February 16, 2021, its “criminal investigation related to that matter is still ongoing and many of the concerns that originally caused the matter to be sealed persist.” Id. The Government claims that any ex parte AWA proceedings in this case “would have been ancillary to, and in furtherance of, the execution of an arrest warrant that was itself under seal, ” id. at p. 7, and would relate to the Government's efforts to secure a third party's “assistance in the execution of a sealed federal arrest warrant.” Id. at p. 11.

III. LEGAL STANDARD

A. The All Writs Act

The AWA authorizes federal courts to “issue all writs necessary or appropriate in aid of their respective jurisdictions and agreeable to the usages and principles of law.” 28 U.S.C. § 1651(a). A federal court may “issue such commands under the All Writs Act as may be necessary or appropriate to effectuate and prevent the frustration of orders it has previously issued in its exercise of jurisdiction otherwise obtained.” United States v. New York Tel. Co., 434 U.S. 159, 172 (1977). “This statute has served since its inclusion, in substance, in the original Judiciary Act as a legislatively approved source of procedural instruments designed to achieve the rational ends of law.” Id. (citations and quotation marks omitted). Indeed, “[u]nless appropriately confined by Congress, a federal court may avail itself of all auxiliary writs as aids in the performance of its duties, when the use of such historic aids is calculated in its sound judgment to achieve the ends of justice entrusted to it.” Id. at 172-73 (citation and quotation marks omitted).

However, “the power of federal courts to impose duties upon third parties is not without limits; unreasonable burdens may not be imposed.” Id. at 172. As relevant here, the AWA “permits the district court, in aid of a valid warrant, to order a third party to provide nonburdensome technical assistance to law enforcement officers.” Plum Creek Lumber Co. v. Hutton, 608 F.2d 1283, 1289 (9th Cir. 1979).

B. Qualified First Amendment and Common-Law Rights of Access to Judicial Records and Proceedings.

“[T]he courts of this country recognize a general right to inspect and copy public records and documents, including judicial documents and records.” Nixon v. Warner Communications, 435 U.S. 589, 597 (1978). The law “recognizes two qualified rights of access to judicial proceedings and records, a common law right to inspect and copy public records and documents, including judicial records and documents, and a First Amendment right of access to criminal proceedings and documents therein.” United States v. Business of Custer Battlefield Museum & Store, 658 F.3d 1188, 1192 (9th Cir. 2011) (citations and quotation marks omitted). “The First Amendment is generally understood to provide a stronger right of access than the common law.” United States v. Doe, 870 F.3d 991, 997 (9th Cir. 2017) (citation and quotation marks omitted).

Even so, “there is no right of access which attaches to all judicial proceedings, even all criminal proceedings.” Phoenix Newspapers, Inc. v. U.S. Dist. Court for Dist. of Ariz., 156 F.3d 940, 946 (9th Cir. 1998). Indeed, “the Supreme Court has implicitly recognized that the public has no right of access to a particular proceeding without first establishing that the benefits of opening the proceedings outweigh the costs to the public.” Times Mirror Co. v. United States, 873 F.2d 1210, 1213 (9th Cir. 1989).

Amidst the case law finding qualified constitutional and common-law rights of access, however, courts have consistently affirmed that “[e]very court has supervisory power over its own records and files.” Nixon, 435 U.S. at 598. The Court's fundamental task is “weighing the interests advanced by the parties in light of the public interest and the duty of the courts.” Id. at 602. Particularly with respect to delineating the common-law right of access, the Supreme Court stressed the fact that “the decision as to access is one best left to the sound discretion of the trial court, a discretion to be exercised in light of the relevant facts and circumstances of the particular case.” Id. at 599.

The court has somewhat of a unique...