Jason Leopold to Unseal Certain Elec. Surveillance Applications v. United States

964 F.3d 1121

IN RE: In the Matter of the Application of Jason LEOPOLD TO UNSEAL CERTAIN ELECTRONIC SURVEILLANCE APPLICATIONS AND ORDERS,

Jason Leopold and Reporters Committee for Freedom of the Press, Appellants

v.United States of America, Appellee

No. 18-5276

United States Court of Appeals, District of Columbia Circuit.

Argued September 25, 2019

Decided July 7, 2020

Katie Townsend argued the cause for appellants. With her on the briefs was Jeffrey Light.

Christopher T. Bavitz was on the brief for amici curiae Former United States Magistrate Judges in support of petitioners and reversal.

Laura R. Handman, Kurt A. Wimmer, Washington, DC, Bruce W. Sanford, Mark I. Bailen, Washington, DC, and David McCraw were on the brief for amici curiae Media Organizations in support of appellants.

Charles S. Sims, New York, NY, was on the brief for amici curiae First and Fourth Amendment Scholars in support of petitioners-appellants and in support of reversal.

Aaron D. Mackey was on the brief for amici curiae Electronic Frontier Foundation and Riana Pfefferkorn in support of petitioners-appellants.

Peter S. Smith, Assistant U.S. Attorney, argued the cause for appellee. With him on the brief were Jessie K. Liu, U.S. Attorney, and Elizabeth Trosman, Chrisellen Kolb, and Pamela S. Satterfield, Assistant U.S. Attorneys.

Before: Tatel and Garland, Circuit Judges, and Silberman, Senior Circuit Judge.

Garland, Circuit Judge:

Journalist Jason Leopold and the Reporters Committee for Freedom of the Press applied to the district court to unseal certain electronic surveillance orders and related filings in closed investigations. The district court Clerk's Office, the U.S. Attorney's Office, and the applicants were able to reach accommodations regarding some of the applicants’ requests. Although the district court determined that the documents are judicial records subject to the common-law right of public access, it denied the remaining requests due to the administrative burden of unsealing.

The public's right of access to judicial records is a fundamental element of the rule of law. Administrative burden is relevant to how and when a judicial record may be unsealed, but not to whether it may be released at all. We therefore reverse the judgment and remand the case for further proceedings.

I

A

This case involves three kinds of court orders authorizing electronic surveillance: judicial warrants issued pursuant to the Stored Communications Act (SCA), court orders issued pursuant to § 2703(d) of that Act, and court orders issued pursuant to the Pen Register Act.

SCA warrants can be used to compel "the disclosure by a provider of electronic communication service of the contents of a wire or electronic communication[ ] that is in electronic storage" for 180 days or less. 18 U.S.C. § 2703(a). SCA warrants can also be used to compel the disclosure by a provider of remote computing service of "the contents of [specified] wire or electronic communication[s]" without notice to the subscriber, or to compel "a provider of electronic communication service or remote computing service to disclose a record or other information pertaining to" a subscriber. Id. § 2703(b)(1)(A), (c)(1).¹ In federal court, the government may obtain an SCA warrant "using the procedures described in the Federal Rules of Criminal Procedure." Id. § 2703(a), (b)(1)(A), (c)(1)(A). A law enforcement officer or attorney must submit an affidavit or other information to a magistrate judge, and the judge must issue the warrant if there is probable cause. FED. R. CRIM. P. 41(d).

SCA § 2703(d) orders can be used to access, with notice to the subscriber, the contents of specified wire or electronic communications held by a remote computing service or, without notice, subscriber records held by an electronic communication or remote computing service. 18 U.S.C. § 2703(b)(1)(B)(ii), (c)(1)(B), (c)(3). Under the statute, the government can obtain a § 2703(d) order from a court by offering "specific and articulable facts showing that there are reasonable grounds to believe" the records or information sought "are relevant and material to an ongoing criminal investigation." Id. § 2703(d).²

Pen register orders authorize law enforcement to install pen registers and trap-and-trace devices. Pen registers capture outgoing metadata; trap-and-trace devices capture incoming metadata. See 18 U.S.C. § 3127(3), (4). Collectively, they tell the government such things as what number a person dialed, what address a person was emailed from, and when someone sent a text. They do not capture the contents of those messages. To obtain a pen register order, a government attorney must certify "that the information likely to be obtained is relevant to an ongoing criminal investigation." Id. § 3122(b)(2). A court must issue the order if it finds that the appropriate certification has been made. Id. § 3123(a)(1).

SCA warrants, SCA § 2703(d) orders, and pen register orders allow law enforcement to collect different kinds of electronic information. But the mechanics of their authorization are similar: the government submits an application, and a court issues an order granting or denying the application. Thus, all three generate similar records that are filed in the court: the application (and supporting documents) filed by the government, the order issued by the court, and the court clerk's docket entries. Heretofore, the United States District Court for the District of Columbia has routinely maintained all of those materials under seal. In re Application of Leopold (Leopold II ), 327 F. Supp. 3d 1, 5 (D.D.C. 2018).

B

In July 2013, Jason Leopold, an investigative reporter now with BuzzFeed News, applied to the district court for an order unsealing some of those materials. In August 2016, the Reporters Committee for Freedom of the Press successfully moved to intervene. Retrospectively -- that is, with respect to past filings -- the Reporters Committee sought to unseal applications, supporting documents, and court orders for SCA warrants, SCA § 2703(d) orders, and pen register orders in closed investigations. Reporters Committee Appl. 1 (J.A. 34). Prospectively -- that is, with respect to future filings -- the Reporters Committee sought access to the court (typically, magistrate court) docket sheets for those materials, as well as the eventual unsealing of the underlying materials themselves. Id. at 1-2 (J.A. 34-35). The applicants argued that "[t]he press and the public have a particularly powerful interest in obtaining access to court documents concerning judicial authorization for the use of [those] law enforcement tools .... [J]udicial oversight and, in turn, public oversight of the judicial process, is necessary to guard against government overreach." Id. at 2 (J.A. 35).

The applicants and the U.S. Attorney's Office, "with guidance from [the district] Court, engaged in discussions on how properly to vindicate, in light of substantial law enforcement investigative and individual privacy concerns, the public's interest in transparency of judicial records concerning the government's use of statutorily authorized investigative tools." Leopold II , 327 F. Supp. 3d at 6. The government acknowledged "that applications and orders relating to electronic surveillance methods need not necessarily be permanently sealed," and it released some information. In re Application of Leopold (Leopold I ), 300 F. Supp. 3d 61, 68, 71 (D.D.C. 2018) (quoting Gov't Resp. 2). The applicants "clarified that the petition sought no personally identifying information concerning investigative targets," id. at 69, and narrowed their requests. From the record, this case appears to be marked by remarkable good faith and accommodation. Guided by the district court, the applicants, the U.S. Attorney's Office, and the district court Clerk's Office took meaningful steps to improve transparency in this district. We applaud the district court for its effective work in moving the process forward.

With respect to past filings, the applicants ultimately received: (1) information about the total number of electronic surveillance applications and more specifics about pen register orders, including basic docket information, for a nine-year period; (2) certain details that the government "extracted" from the files of 10% of pen register matters; and (3) the unsealing (with redactions) of four "sample" pen register applications and orders. Id. at 100.

With respect to future filings, the Clerk's Office and the U.S. Attorney's Office entered into a Memorandum of Understanding. Pursuant to the memorandum, the latter can now electronically file pen register and SCA § 2703(d) applications, which are docketed in a standardized format. Id. at 103-04 & n.37. The dockets are not made available to the public. Instead, the Clerk's Office generates semiannual reports listing docket numbers, case captions, and certain other docket information on a six-month delay. Id. at 104 n.36.

Despite this admirable cooperation, the parties eventually reached an impasse. Regarding past filings, the applicants still sought basic docket information for SCA § 2703(d) matters and specified details to be extracted from 100% of pen register matters filed by the U.S. Attorney's Office since 2008 -- both involving closed investigations only. Proposed Order 4-5 (J.A. 848-49). The applicants no longer sought any of the actual documents or any retrospective relief whatsoever with respect to SCA warrants. Regarding future filings, they requested real-time access to basic docket information, as well as the presumptive unsealing at the close of investigations of applications (and supporting documents), orders, and docket entries for SCA warrants, SCA § 2703(d) orders, and pen register orders. Id. at 2-3, 5-8 (J.A. 846-47, 849-52); see Leopold Br. 3.

The district court denied additional relief and later denied reconsideration. See Leopold I , 300 F. Supp. 3d 61 ; Leopold II , 327 F. Supp. 3d 1. The court began by rejecting...