Forbes Media LLC v. United States

548 F.Supp.3d 872

FORBES MEDIA LLC, et al., Plaintiffs,

v.UNITED STATES of America, Defendant.

Case No. 21-mc-80017-PJH

United States District Court, N.D. California.

Signed July 13, 2021

Jean-Paul Jassy, Elizabeth Holland Baldridge, Jassy Vick Carolan LLP, Los Angeles, CA, Katie Townsend, Grayson Clary, Pro Hac Vice, Reporters Committee for Freedom of the Press, Washington, DC, for Plaintiff Forbes Media LLC.

Katie Townsend, Grayson Clary, Pro Hac Vice, Reporters Committee for Freedom of the Press, Washington, DC, for Plaintiff Thomas Brewster.

Catherine Alden Pelker, Department of Justice Computer Crime and Intellectual Property Section, Washington, DC, William Frentzen, U.S. Attorney's Office, San Francisco, CA, for Defendant.

ORDER RULING ON MOTION FOR DE NOVO DETERMINATION AND DENYING PETITION

Re: Dkt. No. 20

PHYLLIS J. HAMILTON, United States District Judge

On June 24, 2021, the court held a hearing on the motion of petitioners Forbes Media, LLC, and Thomas Brewster ("Petitioners") for de novo determination of dispositive matter referred to magistrate judge, pursuant to Civil L.R. 72-3, and objections to the April 26, 2021, report and recommendation ("R&R") of the magistrate judge to deny their petition to unseal court records ("Petition"). Dkt. 17. For the reasons set forth below, the motion for de novo determination is GRANTED ; the objections to the R&R are OVERRULED ; the R&R is fully adopted as correct, well-reasoned and thorough; and the disposition on the Petition recommended by the R&R is accepted by the court. Accordingly, the Petition is DENIED .

I. Background

A. Fact Summary

Forbes Media, LLC, ("Forbes") is a news media company and publisher. Thomas Brewster is an associate editor for Forbes, covering security, surveillance, and privacy issues. On March 10, 2020, Brewster obtained an All Writs Act ("AWA") application from the public docket of the Southern District of California ("S.D. Cal. Application"). This application had been unsealed on February 14, 2020, according to the clerk's stamp. The S.D. Cal. Application requested an order compelling Sabre, a travel technology firm, "to provide representatives of the FBI complete and contemporaneous ‘real time’ account activity" for an individual subject to an arrest warrant—what the government refers to as a "hot watch" order. Dkt 1-1 at 2, 4.

In support of the S.D. Cal. Application, the government identified several other instances in which it had asked for and obtained technical assistance orders under the AWA imposing similar surveillance obligations on Sabre. The S.D. Cal. Application refers to the following cases within the Ninth Circuit in which Sabre complied with AWA orders to assist with government hot watches: (1) Western District of Washington, AWA Order GJ10-097, signed 2019; (2) Western District of Washington, AWA Order GJ17-432, signed 2017; and (3) Northern District of California, AWA Order CR-16-90391 MISC EDL, signed 2016. Dkt. 1-1 at 4. The S.D. Cal. Application more generally cites to the following cases in which other district courts have issued AWA orders: Western District of Pennsylvania, case number 15-880; and Eastern District of Virginia, case number 1:15-CR-245.

In July 2020, petitioners published an article about the contents of the S.D. Cal. Application along with a copy of the document. See Thomas Brewster, The FBI Is Secretly Using a $2 Billion Travel Company as a Global Surveillance Tool, FORBES, July 16, 2020.¹

The government initially neither confirms nor denies that the AWA applications and orders Petitioners seek even exist. The government avers that, if any responsive documents exist, they relate to ongoing investigations. However, in its opposition papers, the government explicitly asserts that the AWA materials at issue relate to an ongoing criminal investigation that is itself sealed. See, e.g., Dkt. 12 at 5.²

B. Procedural Posture

In January 2021, petitioners filed applications in three of the courts referenced above to unseal the identified AWA applications and orders, and this miscellaneous matter comprises the application for the documents sought in this district (CR-16-90391 MISC EDL). See Dkt. 1 at 1; In re Application of Forbes Media LLC and Thomas Brewster to Unseal Court Records, No. 2:21-mc-52 (W.D. Pa. Jan. 25, 2021); In re Application of Forbes Media LLC and Thomas Brewster to Unseal Court Records, No. 2:21-mc-0007 (W.D. Wash. Jan. 25, 2021). As in this case, the applications submitted in the other courts requested access to the court orders themselves; the government's applications and supporting documents; and any other related judicial records, including motions and orders to seal, docket sheets, and any docket entries. See Dkt. 1 at 1.

Petitioners named the U.S. Attorney's Office for the Northern District of California as an interested party in this case. Dkt. 2. The government filed its opposition to the application on February 16, 2021. Dkt. 12. The government additionally submitted directly to the magistrate judge an ex parte, confidential fact supplement on the same day. Petitioners filed their reply in support of the application on February 23 (Dkt. 13), along with a motion to unseal the ex parte, confidential fact supplement (Dkt. 14). The government filed an opposition to this motion to unseal the fact supplement on April 22. Dkt. 16. Judge Hixson issued the R&R now at issue on April 26. Dkt. 17. The case was reassigned to this court.

Petitioners filed their motion for de novo determination in accordance with Civil L.R. 72-3, including their objections to the report, on May 10. Dkt. 20. The motion was fully briefed, and the court held a hearing on the motion on June 24.

C. Issues to be Decided

Centrally, petitioners’ original request is for the court to unseal (1) the AWA Order that required Sabre, a travel technology firm, to assist the United States government in effectuating an arrest warrant in case number CR-16-90391 MISC EDL. Petitioners additionally request that the court unseal (2) the government's application for the AWA Order and any supporting documents, including affidavits; (3) any other court records relating to the AWA Order, including, but not limited to, any motions to seal, the docket in case number CR-16-90391 MISC EDL, and all docket entries. Dkt. 1.

In addition to its opposition to the Petition, the government requests that the court seal or strike the S.D. Cal. Application (Dkt. 1-1) because the Southern District of California did not intend for that document to become unsealed and because the document contains personal identifying information of a foreign national. Dkt. 24 at 4.

The government submitted to the magistrate judge an ex parte, highly sensitive statement of facts in addition to its original opposition to the application to unseal. That statement of facts is not entered on the docket. Applicants separately request that the court unseal this document. Dkt. 14.

Regarding the report and recommendations now at issue (Dkt. 17), petitioners ask the court to reject as incorrect the report's conclusions that (1) the common law right of access does not attach to the documents here sought; (2) the common law right of access was overcome with respect to the entirety of each document sought; (3) the First Amendment right of access does not attach to the documents here sought; and (4) the First Amendment right of access was overcome with respect to the entirety of each document sought.

II. Standard of Review

When a party has timely filed written objections to the proposed findings and recommendations of a magistrate judge, a district judge shall make "a de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made." 28 U.S.C. § 636(b)(1). The court "may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge," and "may also receive further evidence or recommit the matter to the magistrate judge with instructions." Id.

III. Discussion

There are two public rights of access to the work of the judiciary, one under the First Amendment and the other under the common law. Each is analyzed separately and in turn.

A. First Amendment Public Right of Access

1. Legal Standard

Under Ninth Circuit authority, "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). To determine whether the public has a First Amendment right of access to a judicial proceeding or documents generated from the proceeding, "[c]ourts are required to examine whether 1) historical experience counsels in favor of recognizing a qualified First Amendment right of access to the proceeding and 2) whether public access would play a ‘significant positive role in the functioning of the particular process in question.’ " Id. (quoting Press-Enterprise Co. v. Superior Court, 478 U.S. 1, 8, 106 S.Ct. 2735, 92 L.Ed.2d 1 (1986) (" Press-Enterprise II")).

While courts must consider both "historical experience" and "logic" to determine whether the public has a First Amendment right to access to a particular proceeding, Ninth Circuit authority recognizes that "logic alone, even without experience, may be enough to establish the right." In re Copley Press, Inc., 518 F.3d 1022, 1026 (9th Cir. 2008) (citation omitted). As construed by the panel in Copley Press, the "experience and logic" tests "are not separate inquiries. Where access has traditionally been granted to the public without serious adverse consequences, logic necessarily follows. It is only where access has traditionally not been granted that we look to logic. If logic favors disclosure in such circumstances, it is necessarily dispositive." Copley Press, 518 F.3d at 1026 n.2.

However, "[e]ven when the public enjoys a First Amendment right of access to a particular proceeding,...