In Re in the Matter of the Application of Jason Leopold to Unseal Certain Electronic Surveillance Applications and Orders ( 2018 )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
IN THE MATTER OF THE APPLICATION
OF JASON LEOPOLD TO UNSEAL Misc. Action No. 13-mc-00712
CERTAIN ELECTRONIC SURVEILLANCE
APPLICATIONS AND ORDERS. Chief Judge Beryl A. Howell
MEMORANDUM OPINION
Jason Leopold and the Reporters Committee for Freedom of the Press filed petitions to
unseal voluminous judicial records, dating back years, authorizing the government’s use of
certain statutory authorities to gather information for use in now-closed criminal investigations,
which petitions were predicated on asserted rights of access under the First Amendment and the
common law. See Leopold’s Pet. Unseal Records (“Leopold’s Pet.”), ECF No. 1; Reporters
Comm.’s Appl. to Unseal & for Other Appropriate Relief (“Reporters Comm.’s Appl.”), ECF
No. 18. On February 26, 2018, the Court recognized a prospective right of access under the
common law to limited information concerning three categories of judicial records, routinely
maintained under seal, relating to applications filed by the U.S. Attorney’s Office for the District
of Columbia (“USAO”) for: (1) warrants issued pursuant to the Stored Communications Act
(“SCA”), see 18 U.S.C. § 2703(a); (2) court orders issued pursuant to the SCA’s § 2703(d); and
(3) orders authorizing the installation and use of pen register and trap and trace (“PR/TT”)
devices pursuant to the Pen Register Act (“PRA”), see id. § 3123. See Order Granting in Part &
Denying in Part Leopold’s Pet. & Reporters Comm.’s Appl. (“Order”), ECF No. 53; Matter of
Leopold to Unseal Certain Elec. Surveillance Applications & Orders (“Leopold”), 300 F. Supp.
3d 61 (D.D.C. 2018). The Court declined to recognize a broader or retrospective right of access
1
under the common law or to recognize any right of access under the First Amendment to these
routinely sealed records. Leopold, 300 F. Supp. 3d at 108.
The petitioners now seek reconsideration of the Court’s Order and Memorandum
Opinion. See Pet’rs’ Mot. Reconsideration, ECF No. 55. Specifically, the petitioners ask the
Court to (1) reconsider its conclusion that the First Amendment affords no right of access to the
three categories of judicial records at issue, (2) reconsider its conclusion that the common law
provides no broader right of access than that which the Court has recognized, and (3) more
clearly specify the factual findings upon which the Court based its resolution of the petitioners’
common law claim. Id. at 1. For the reasons explained below, the petitioners’ motion for
reconsideration is denied.
I. BACKGROUND
The Court’s previous Memorandum Opinion laid out this matter’s background in great
detail, see Leopold, 300 F. Supp. 3d at 68–79, so only a brief overview of the relevant facts is
necessary. In July 2013, Leopold, a journalist currently employed by BuzzFeed News, filed a
petition to unseal nearly twenty years of sealed government applications, pursuant to various
statutory authorities, plus related affidavits and orders, regarding the government’s collection of
information during law enforcement investigations, “except for those which relate to an ongoing
investigation.” See Leopold’s Pet. at 1. Leopold asserted that both the First Amendment and the
common law established rights of access to these materials. Id. at 4, 12–18. Three years later,
after the case was reassigned to the undersigned Judge, the Reporters Committee was permitted
to intervene, see Reporters Comm.’s Unopposed Mot. Intervene, ECF No. 16, and filed its own
petition to unseal, see Reporters Comm.’s Appl. Over the next year, the petitioners and the
USAO, with guidance from this Court, engaged in discussions on how properly to vindicate, in
2
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. See Leopold, 300 F. Supp. 3d at 67–68.
In the course of these discussions, the petitioners agreed to limit the scope of their
unsealing request by shortening the time period covered and seeking only records relating to (1)
SCA warrants, pursuant to 18 U.S.C. § 2703(a); (2) SCA orders, pursuant to 18 U.S.C. §
2703(d); and PR/TT orders. Id. at 69. The USAO, meanwhile, agreed to unseal
(1) the total numbers of USAO-filed PR/TT matters during the period of 2008
through 2016; (2) the total numbers of § 2703(d) and SCA warrant matters,
retrieved using certain search criteria, filed by the USAO and DOJ components
during this period; (3) certain docket information concerning PR/TT matters the
USAO initiated during this period; (4) over 100 pages of redacted documents from
four representative sample PR/TT matters from 2012; and (5) fifteen categories of
extracted information from a representative sample of ten percent of USAO-filed
PR/TT matters from 2012.
Id. at 100. At all times, the petitioners’ limited the scope of their requested relief to materials
from closed investigations. This limit necessarily precludes real-time disclosure of any
information or records, including docketed case numbers, for these criminal investigative
matters, since the USAO only seeks, and the Court only grants, such orders in “ongoing criminal
investigation[s].” 18 U.S.C. § 2703(d); id. § 3123(a)(1). Eventually, the parties could reach no
further agreement, and requested that the Court resolve the petitioners’ claims. Leopold, 300 F.
Supp. 3d at 79.
On February 26, 2018, the Court granted in part and denied in part the petitioners’
petitions. See Order. The Court explained, in an accompanying Memorandum Opinion, that the
petitioners’ First Amendment right of access claim failed because the petitioners had failed to
establish “the prerequisite [] showing [of] a longstanding tradition of public access . . . as to the
PR/TT and SCA materials at issue.” Leopold, 300 F. Supp. 3d at 85. Further, no retrospective
3
right of access under the common law was recognized, in light of the considerable administrative
burden that such extensive unsealing of nearly a decade’s worth of surveillance materials would
impose on the USAO and the Clerk’s Office, due to the necessity of identifying, reviewing and
redacting sensitive law enforcement and privacy-protected information from any unsealed
records. Id. at 97–103. The Court held, however, that the common law afforded the petitioners a
limited prospective right of access to certain information on the materials sought “in light of the
changes recently adopted by the USAO and Clerk’s Office in the processing of such materials.”
Id. at 85. Specifically, the Court held that the petitioners enjoyed a prospective common law
right of access to information, to be disclosed periodically, “regarding the total number of
PR/TT, § 2703(d), and SCA warrant applications filed by the USAO, the number and type of
accounts that such applications target, the names of the providers to which these applications are
directed, and the primary criminal offense under investigation for these applications.” Id. at 108.
The petitioners have now filed a motion for reconsideration, see Pet’rs’ Mot.
Reconsideration, which is ripe for review.
II. LEGAL STANDARD
Rule 59(e) of the Federal Rules of Civil Procedure allows a party to file “[a] motion to
alter or amend a judgment.” FED. R. CIV. P. 59(e). A Rule 59(e) motion is “discretionary and
need not be granted unless the district court finds that there is an intervening change of
controlling law, the availability of new evidence, or the need to correct a clear error or prevent
manifest injustice.” Messina v. Krakower, 439 F.3d 755, 758 (D.C. Cir. 2006) (quoting
Firestone v. Firestone, 76 F.3d 1205, 1208 (D.C. Cir. 1996)). As the D.C. Circuit recently
stressed, “the reconsideration or amendment of a judgment is nonetheless an extraordinary
measure.” Leidos, Inc. v. Hellenic Republic, 881 F.3d 213, 217 (D.C. Cir. 2018). A Rule 59(e)
4
motion “may not be used to relitigate old matters, or to raise arguments or present evidence that
could have been raised prior to the entry of judgment,” id. (quoting Exxon Shipping v. Baker, 554
U.S. 471, 486 n.5 (2008)), and “is ‘not a vehicle to present a new legal theory that was available
prior to judgment,’” id. (quoting Patton Boggs LLP v. Chevron Corp., 683 F.3d 397, 403 (D.C.
Cir. 2012)). Thus, “Rule 59(e) is not available to a party who ‘could have easily avoided the
outcome, but instead elected not to act until after a final order had been entered.’” Id. at 220(quoting Ciralsky v. CIA, 355 F.3d 661, 665 (D.C. Cir. 2004)).
III. DISCUSSION
Having identified no “intervening change of controlling law” or new and previously
unavailable evidence, the petitioners are entitled to reconsideration only if the Court committed
“clear error” or worked “manifest injustice.” Messina, 439 F.3d at 758 (quoting Firestone, 76
F.3d at 1208). The petitioners contend that reconsideration is appropriate because the Court
erred in concluding that (1) the First Amendment affords no right of access to judicial records
relating to SCA warrants, § 2703(d) orders, and PR/TT orders, and (2) the common law affords
the petitioners only a limited, prospective right of access to these records.1 Additionally, the
petitioners ask the Court to (3) clarify the factual basis of its conclusion as to the common law
right of access. As detailed below, the petitioners identify no error in the Court’s analysis, much
less error that is “clear” or gives rise to “manifest injustice.” Id. The petitioners thus are not
entitled to reconsideration.
1
Even if the Court had erred in failing to recognize a First Amendment right of access to SCA warrant
materials, any such error could not have prejudiced the petitioners, as the petitioners ultimately sought only
prospective access to SCA warrant materials, in light of the acknowledged practical difficulties demonstrated over
the course of the litigation that attend identifying, reviewing and unsealing only appropriate materials, see Pet’rs’
Suppl. Mem. Pts. & Auths. Supp. App. Unseal (“Pet’rs’ Mem. Supp. App. Unseal”) at 42–43, ECF No. 47, and the
Court granted the requested prospective access to limited information concerning SCA warrant materials under the
common law, Leopold, 300 F. Supp. 3d at 108; see Russell v. Harman Int’l Indus., Inc., 773 F.3d 253, 255 (D.C.
Cir. 2014) (“A district court’s” error “does not constitute reversible error if it did not prejudice the parties.”).
5
A. The Court Did Not Err in Concluding That SCA Warrants Are Analogous to
Subpoenas Rather Than to Traditional Search Warrants.
To establish a right of access to judicial records under the First Amendment, a petitioner
must show both (1) “an ‘unbroken, uncontradicted history’ of openness” as to the materials to
which access is sought and that (2) “public access plays a significant positive role in the
functioning of the proceeding.” United States v. Brice, 649 F.3d 793, 795 (D.C. Cir. 2011)
(quoting Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555, 573 (1980)). “A new procedure
that substituted for an older one” is “evaluated by the tradition of access to the older procedure.”
United States v. El-Sayegh, 131 F.3d 158, 161 (D.C. Cir. 1997).
The Court concluded that the First Amendment afforded no right of access to the judicial
records at issue because the petitioners had failed to show that SCA and PR/TT materials either
historically have been publicly available or may be analytically substituted for materials to which
courts have recognized a First Amendment right of access. Leopold, 300 F. Supp. 3d at 85–91.2
In reaching this conclusion, the Court determined that SCA warrants, § 2703(d) orders, and
PR/TT orders are more analogous to subpoenas, to which no recognized First Amendment right
of access attaches, than to traditional search warrants. Id. at 88–91.
The petitioners argue that the Court erred in concluding that SCA warrants, § 2703(d)
orders, and PR/TT orders are more analogous to subpoenas than to traditional search warrants.
Pet’rs’ Mem. Supp. Mot. Reconsideration (“Pet’rs’ Mem.”) at 6, ECF No. 55.3 Specifically, the
2
The petitioners assert that the Court erred in suggesting that “the SCA is not sufficiently ‘new’ to be
‘evaluated by the tradition of access to’ an older procedure, such as search warrants.” Pet’rs’ Mem. at 10 (internal
citation omitted). This assertion is incorrect, as the Court did in fact evaluate SCA warrants by the tradition of
access to an older procedure—namely, subpoenas. See Leopold, 300 F. Supp. 3d at 88–91. While expressing doubt
that “SCA orders are of such recent vintage as to require analytical substitution,” given that such orders have existed
for over thirty years, the Court conducted such analytical substitution nonetheless. Id. at 34–35. The Court’s
skepticism as to analytical substitution’s propriety thus did not prejudice the petitioners.
3
The petitioners posit that reconsideration of the Court’s denial of the petitioners’ First Amendment claim
“is appropriate” because they had not previously had a “full opportunity . . . to address” the argument that “SCA
search warrants, Section 7703(d) [sic] orders, and PR/TT orders are [more] analogous to subpoenas” than to
6
petitioners make the following arguments, several of which the Court previously rejected: (1) the
SCA’s use of the term “warrant” establishes that SCA warrants are akin to traditional search
warrants, id. at 6, 9, 11; (2) SCA warrants do not differ sufficiently as to method of execution
from traditional search warrants so as to be more like subpoenas, id. at 7; (3) the practical
inability of a target or subject of an ongoing criminal investigation to challenge an SCA warrant
prior to execution renders an SCA warrant akin to a traditional search warrant, id. at 7–8; and (4)
a Fourth Amendment search requires a warrant, id. at 8. The petitioners further contend that: (5)
the Court’s analysis will diminish journalists’ ability to resist government efforts to collect
evidence in their possession relevant to a law enforcement investigation, id. at 12–15; (6) §
2703(d) and PR/TT order materials are more analogous to traditional search warrants than to
subpoenas, id. at 15–16; (7) the Court failed to address the petitioners’ asserted right of access to
court dockets, id. at 17–18; and (8) the Reporters Committee has from the beginning sought real-
time unsealing of docket information, id. at 18. These arguments are addressed in turn.
1. The Court Correctly Concluded That the SCA’s “Warrant” Nomenclature Does
Not Support a First Amendment Right of Access.
traditional search warrants, as the USAO had not taken that position. Pet’rs’ Mem. at 3. To the contrary, the
petitioners had every opportunity to address this argument in their initial memorandum, see Pet’rs’ Mem. Supp.
App. Unseal at 42–43, but instead simply assumed, without further discussion of the issue, that SCA warrants are
substantively akin to traditional search warrants. That the USAO did not dispute this erroneous assumption did not
deprive the petitioners of the opportunity they had in both their initial and reply memoranda to show, rather than just
assume, “that SCA search warrants, Section 7703(d) [sic] orders, and PR/TT orders are analogous to” Pet’rs’ Mem.
at 3, traditional search warrants rather than to subpoenas. A central question in the Microsoft litigation, which the
petitioners cite throughout their briefing, was whether an SCA warrant is more akin to a traditional search warrant or
to a subpoena. See Matter of Warrant to Search a Certain E-Mail Account Controlled & Maintained by Microsoft
Corp., 855 F.3d 53, 60 (2d Cir. 2017) (Jacobs, J., dissenting from the denial of rehearing en banc) (“The instrument
functions as a subpoena though the Act calls it a warrant”); id. at 70 (Raggi, J., dissenting from the order denying
rehearing en banc); Matter of Warrant to Search a Certain E-Mail Account Controlled & Maintained by Microsoft
Corp., 829 F.3d 197, 214–16 (2d Cir. 2016); id. at 226–27 (Lynch, J., concurring); In re Warrant to Search a
Certain E-Mail Account Controlled & Maintained by Microsoft Corp., 15 F. Supp. 3d 466, 471 (S.D.N.Y. 2014).
The prominence, at every stage of the Microsoft litigation, of the issue of whether an SCA warrant is in substance
more akin to a traditional search warrant or to a subpoena plainly put the petitioners on notice of the need to address
this predicate issue in arguing that an SCA warrant is analogous to a traditional search warrant for purposes of
establishing a First Amendment right of access. In short, the petitioners’ failure to address this issue owes more to
an incorrect assumption rather than to any lack of opportunity to do so.
7
First, the petitioners argue that the SCA’s use of the term of art “warrant” in § 2703(a)
shows that Congress intended “that the public ha[ve] a First Amendment right of access to
records related to a warrant once the related investigation has come to an end.” Id. at 6. The
Court addressed and rejected this argument in recognizing that “First Amendment analysis looks
to the substance of the government’s powers rather than how an Act nominally refers to those
powers.” Leopold, 300 F. Supp. 3d at 88 (quoting Big Ridge, Inc. v. Fed. Mine Safety & Health
Review Comm’n, 715 F.3d 631, 646 (7th Cir. 2013) (alterations and internal quotation marks
omitted)). To determine whether an SCA warrant is analogous to a traditional search warrant or
to a subpoena, the Court reasoned, “requires determining the procedures’ degree of functional
similarity, rather than looking to labels.” Id. As a matter of function and substance, an SCA
warrant is more like a subpoena than a traditional search warrant. See id. at 88–91. The
petitioners do not explain why “labels,” id., rather than function and substance, should govern
analysis of whether SCA warrants should “be evaluated by the tradition of access to” traditional
search warrants or subpoenas, El-Sayegh, 131 F.3d at 161. This is not to say the word choice on
what to call an SCA warrant is irrelevant to its substance and function. After all, “when
Congress employs a term of art, it presumably knows and adopts the cluster of ideas that were
attached” to that term. FAA v. Cooper, 132 S. Ct. 1441, 1449 (2012). Thus, the language
Congress uses to describe SCA warrants may help to understand an SCA warrant’s substantive
and functional content, but a label is not dispositive.4
4
The legislative history cited by the petitioners for the proposition “that Congress had in mind conventional
search warrants when it used the term ‘warrant’ in the SCA,” Pet’rs’ Mem. at 9, shows only that Congress intended
to import into SCA warrants the probable cause requirement. See H.R. REP. No. 99-647, at 68 (1986) (“The
Committee required the government to obtain a search warrant because it concluded that the contents of a message
in storage [for less than 180 days] were protected by the Fourth Amendment.”); S. REP. 99-541, at 3 (1986)
(describing the SCA’s purpose as “to protect privacy interests in personal and proprietary information, while
protecting the Government's legitimate law enforcement needs.”).
8
As this Court previously has explained, however, Congress’s purpose in using the term
“warrant” in the SCA was to “import[] some—but not all—of the requirements of Rule 41,
including, most importantly, the probable cause requirement.” In re Search of Info. Associated
with [redacted]@gmail.com that is Stored at Premises Controlled by Google, Inc. (“Google”),
No. 16-MJ-00757 (BAH), 2017 WL 3445634, at *21 (D.D.C. July 31, 2017).5 The question here
is not whether or not to respect Congress’s decision to “adopt[]” into the SCA “the cluster of
ideas that were attached” to the term “warrant,” but rather, which particular ideas Congress
intended to include in the “cluster of ideas” “adopted” into the SCA. Cooper, 132 S. Ct. at 1449.
Nothing in the SCA’s text, structure, or legislative history suggests a congressional
design to incorporate into the SCA any “understanding that the public has a First Amendment
right of access to records related to a warrant once the related investigation has come to an end.”
Pet’rs’ Mem. at 6. Indeed, as Google noted, an SCA warrant provides for less public disclosure
regarding government collection of information than does a traditional search warrant in at least
one respect: “unlike a [traditional] search warrant, which requires that the warrant and receipt for
property taken be left with ‘the person from whom, or from whose premises, the property was
taken,’ . . . no notice to the customer is required to be given by the government when using an
SCA warrant.” 2017 WL 3445634, at *19 (quoting FED. R. CRIM. P. 41(f)(1)(C)). The
government, under § 2705(b), also may preclude a service provider from notifying a customer of
an SCA warrant’s existence, id., “for such period as the court” that approved the SCA warrant
5
The petitioners fail to address Google’s reasoning in any meaningful way other than perfunctorily to
“respectfully urge the Court to follow” the analysis of the Second Circuit’s Microsoft ruling, Pet’rs’ Mem. at 10; see
Microsoft, 829 F.3d 197, which analysis Google expressly considered and rejected, see 2017 WL 3445634, at *5,
**13–14, **18–19, **23–24. The Court’s Memorandum Opinion in this matter reached a conclusion contrary to
that of Microsoft on the issue of whether an SCA warrant is more analogous to a traditional search warrant or a
subpoena, and in so doing relied on Google, which expressly rejected Microsoft, and cited to the opinions of judges
who disagreed with the reasoning of the Second Circuit’s Microsoft ruling, as well as the opinion of the magistrate
judge of the Southern District of New York that Microsoft reversed. See Leopold, 300 F. Supp. 3d at 89. The Court
thus rejected, rather than failed to consider, Microsoft’s reasoning.
9
“deems appropriate,” 18 U.S.C. § 2705(b). A person subject to a search and seizure pursuant to
a traditional search warrant is entitled to be notified of such search and seizure, while a person
whose information the government obtains through an SCA warrant is not entitled to know the
government has obtained such information. See Google, 2017 WL 3445634, at *22 (noting the
SCA’s “omission of any user notification requirement”). Congress’s provision of less public
disclosure regarding searches and seizures conducted pursuant to SCA warrants than those
conducted pursuant to traditional search warrants belies the notion that Congress, merely by
employing the term “warrant,” designed SCA warrants to disclose the government’s collection of
evidence to the same extent as does a traditional search warrant.
That an SCA warrant incorporates the probable cause standard, see 18 U.S.C. § 2703(a),
does not make an SCA warrant more akin to a traditional search warrant, because an SCA
warrant, like a subpoena, lacks those features of a traditional search warrant that necessitate the
probable cause standard in the first place. “[T]he immediacy and intrusiveness of a search and
seizure conducted pursuant to a warrant demand the safeguard of demonstrating probable cause
to a neutral judicial officer before the warrant issues.” In re Subpoena Duces Tecum, 228 F.3d
341, 348 (4th Cir. 2000). A subpoena, in contrast, “requires the recipient of the order to turn
over evidence to the government within a specified period of time” and provides ex ante
opportunity to challenge disclosure, and so “do[es] not require probable cause” to issue. Orin S.
Kerr, A User’s Guide to the Stored Communications Act, and A Legislator’s Guide to Amending
It, 72 GEO. WASH. L. REV. 1208, 1211 (2004).6 As this Court has explained, an SCA warrant is
6
In this regard, a subpoena provides two core elements of due process: notice and an opportunity to be
heard. See Mullane v. Cent. Hanover Bank & Tr. Co., 339 U.S. 306, 313 (1950) (“Many controversies have raged
about the cryptic and abstract words of the Due Process Clause but there can be no doubt that at a minimum they
require that deprivation of life, liberty or property by adjudication be preceded by notice and opportunity for hearing
appropriate to the nature of the case.”).
10
more akin to a subpoena than to a traditional search warrant as to both “method of execution and
opportunity for pre-disclosure challenge,” Leopold, 300 F. Supp. 3d at 88, in that an SCA
warrant compels a recipient to hand over information rather than authorizing government agents’
physical intrusion to seize it, and is subject to pre-execution challenge, see id. at 88–90. Thus, an
SCA warrant shares neither feature of a traditional search warrant that necessitates the probable
cause standard. The fact that Congress, in SCA’s §2703(a), accorded the content of wire and
electronic communications held by providers of electronic communication services (“ECS”) or
remote computing services (“RCS”) heightened protection with a probable cause requirement
before a government entity is authorized to compel disclosure does not otherwise render an SCA
warrant more akin to a traditional search warrant than to a subpoena.
The petitioners attempt to bolster their argument by pointing to the CLOUD Act, enacted
as part of the Consolidated Appropriations Act, 2018, Pub. L. 115-141. In the petitioners’ view,
this legislation “makes clear that Congress used ‘warrant’ in the SCA as a term of art.” Pet’rs’
Reply Supp. Mot. (“Pet’rs’ Reply”) at 5, ECF No. 59. Under the CLOUD Act,
[a] provider of [ECS] or [RCS] shall comply with the obligations of this chapter to
preserve, backup, or disclose the contents of a wire or electronic communication
and any record or other information pertaining to a customer or subscriber within
such provider's possession, custody, or control, regardless of whether such
communication, record, or other information is located within or outside of the
United States”
18 U.S.C. § 2713. The petitioners acknowledge the “considerable case law establishing that
subpoenas apply to information stored abroad,” whereas “conventional warrants . . . do not apply
abroad unless a statute expressly permits it,” Pet’rs’ Reply at 7 (internal quotation marks
omitted); see Google, 2017 WL 3445634, at **14–15, and argue that Congress’s enactment of
the CLOUD Act shows that Congress intended an SCA warrant to be akin to a traditional search
warrant, because “[i]f Congress intended SCA warrants to be a type of subpoena, there would be
11
no need to pass the CLOUD Act.” Pet’rs’ Reply at 7; see also id. (“If SCA search warrants are
indeed a form of subpoena, the CLOUD Act would have been superfluous.”). This reasoning
ignores the seemingly (but apparently not) obvious reality that Congress just as likely enacted the
CLOUD Act precisely to clarify that an SCA warrant is functionally analogous to a subpoena,
rather than to a traditional search warrant, because Congress feared the Supreme Court would
reach a contrary (and, in Congress’s view, erroneous) conclusion in the then-pending appeal
from the Second Circuit of the Microsoft decision.7 The CLOUD Act’s enactment thus, if
anything, shows that Congress intended an SCA warrant to function as a subpoena, rather than as
a traditional search warrant.
2. An SCA Warrant’s Method of Execution is More Akin to That of a Subpoena
Than That of a Traditional Search Warrant.
The petitioners argue that an SCA warrant’s “typical method of execution . . . does not
establish that an SCA search warrant is more akin to a subpoena than to a conventional, brick-
and-mortar search warrant.” Pet’rs’ Mot. at 7. First, the petitioners note, “brick-and-mortar
search warrants may also require third-party compliance.” Id. (emphasis added). This is true
enough, but an SCA warrant’s execution always requires a third-party provider’s compliance, see
7
Certainly, prior to the CLOUD Act’s enactment, the view of the vast majority of courts to consider the
question of whether an SCA warrant applied to information stored overseas was directly opposite to the position
advanced by the Second Circuit panel in Microsoft. Compare Microsoft, 829 F.3d at 201 (construing 18 U.S.C. §
2703(a)’s use of the term “warrant” to import traditional search warrants’ domestic “territorial limitations”), with
Google, 2017 WL 3445634, at *5 (construing 18 U.S.C. § 2703(a) to allow the government to compel production of
information stored abroad); Matter of Search of Info. Associated with [redacted]@gmail.com That is Stored at
Premises Controlled by Google, Inc., No. 16-MJ-757 (GMH), 2017 WL 2480752, at *1 (D.D.C. June 2, 2017), aff’d
sub nom. Google (same); Matter of Search of Contents & Records Relating to Google Accounts, No. 18-MC-00020,
2018 WL 942301, at *1 (S.D. Ohio Feb. 15, 2018) (same); In re Search Warrant Issued to Google, 264 F. Supp. 3d
1268, 1269 (N.D. Ala. 2017) (same); In re Search Warrant No. 16-960-M-1 to Google, 275 F. Supp. 3d 605, 606
(E.D. Pa. 2017) (same); Matter of Search of Content Stored at Premises Controlled by Google Inc., No. 16-MC-
80263-RS, 2017 WL 3478809, at *5 (N.D. Cal. Aug. 14, 2017) (same); In re Search of Content That is Stored at
Premises Controlled by Google, Case No. 16–mc–80263, 2017 WL 1487625, at *1 (N.D. Cal. Apr. 25, 2017)
(same); In re Search of Premises Located at [redacted]@yahoo.com, Stored at Premises Owned, Maintained,
Controlled or Operated by Yahoo, Inc., Case No. 17–mj–1238 (M.D. Fla. April 7, 2017) (same); In re Information
Associated with One Yahoo Email Address that is Stored at Premises Controlled by Yahoo, Case Nos. 17–mj–1234,
17–mj–1235, 2017 WL 706307, at *4 (E.D. Wis. Feb. 21, 2017) (same); In re Search Warrant No. 16–960–M–01 to
Google, 232 F.Supp.3d 708, 722–723 (E.D. Pa. Feb. 3, 2017) (same).
12
18 U.S.C. § 2703(a), whereas a traditional search warrant’s execution does not, see generally
FED. R. CRIM. P. 41. An SCA warrant is more analogous to a subpoena than to a traditional
search warrant in this respect. Second, the petitioners note that “[a]n agent’s physical presence is
not precluded in the execution of an SCA search warrant.” Pet’rs’ Mot. at 7 (alterations and
internal quotation marks omitted). This too is true enough, but a traditional search warrant’s
execution always entails a government officer’s physical presence, see 18 U.S.C. § 3105,
whereas an SCA warrant’s execution does not, see id. § 2703(g) (“Notwithstanding section 3105
of this title, the presence of an officer shall not be required for service or execution of a search
warrant issued in accordance with this chapter.”).8 An SCA warrant thus is more analogous to a
subpoena than to a traditional search warrant as to method of execution.
3. A Target’s Practical Inability to Move to Quash an SCA Warrant Prior to
Execution Does Not Render an SCA Warrant Analogous to a Traditional Search
Warrant.
The petitioners argue that an SCA warrant is more akin to a traditional search warrant
than to a subpoena with respect to opportunity for pre-execution challenge because only the
provider of ECS or RCS, not the target whose content or records are sought, typically has such
opportunity as a practical matter. See Pet’rs’ Mem. at 7.9 The fact that the government generally
8
The petitioners’ admission “that a government agent’s physical presence is more often involved in the
execution of a traditional search warrant than in the execution of an SCA search warrant,” Pet’rs’ Mem. at 7, is at
best a serious understatement.
9
The petitioners assert that “[t]he records obtained via an SCA warrant . . . belong to the subscriber,” Pet’rs’
Mem. at 8, citing United States v. Warshak, 631 F.3d 266, 286 (6th Cir. 2010), for the proposition that a subscriber
has a property interest in records the government may obtain through an SCA warrant. Warshak, however, merely
held that a subscriber has “a reasonable expectation of privacy,” not a property interest, “in the contents of an email
account.” Id. In any event, conflating property with privacy interests, as petitioners do, is analytically incorrect
because ownership may be a factor in but is not the touchstone of Fourth Amendment protections. See Carpenter v.
United States, 138 S. Ct. 2206, 2213 (2018) (“More recently, the Court has recognized that ‘property rights are not
the sole measure of Fourth Amendment violations.’” (quoting Soldal v. Cook County, 506 U. S. 56, 64 (1992)));
United States v. Jones, 565 U.S. 400, 411 (2012) (“[W]e do not make trespass the exclusive test” of reasonableness
under the Fourth Amendment); Katz v. United States, 389 U.S. 347, 353 (1967) (“[T]he premise that property
interests control the right of the Government to search and seize has been discredited.” (internal quotation marks
omitted)); id. at 360 (Harlan, J., concurring) (“[A]n enclosed telephone booth is an area where . . . a person has a
constitutionally protected reasonable expectation of privacy.”).
13
can prevent a target from learning of an SCA warrant’s existence, and thus, from challenging the
SCA warrant’s execution ahead of time, through non-disclosure and sealing orders does not
render an SCA warrant more akin to a traditional search warrant than to a subpoena in this
respect. The recipient of the SCA warrant may nonetheless challenge compliance with the
subpoena on grounds of scope or undue burden. See, e.g., Matter of Warrant to Search a Certain
E-Mail Account Controlled & Maintained by Microsoft Corp., 829 F.3d 197, 200 (2d Cir. 2016)
(recognizing that an SCA warrant’s recipient may move to quash); cf. 18 U.S.C. §2703(d)
(allowing a court to modify or quash order “if the information or records requested are unusually
voluminous in nature or compliance with such order otherwise would cause an undue burden on
such provider.”).
Further, ECS and RCS providers to whom SCA warrants are directed, like the targets
themselves, have legal incentives to move to quash SCA warrants that appear defective in some
regard. The SCA prohibits providers from disclosing to the government contents of or records
relating to a target’s electronic communications except under certain enumerated circumstances.
18 U.S.C. § 2702(a). One such circumstance is where disclosure is authorized pursuant to §
2703. Id. § 2702(b)(2), (c)(1). The SCA creates a cause of action under which one aggrieved by
an SCA violation may sue a provider for damages, including potentially punitive damages. Id. §
2707(a)–(c). A provider, however, may assert “[a] good faith reliance on . . . a court warrant or
order” as “a complete defense to any civil . . . action.” Id. § 2707(e)(1).
The D.C. Circuit has not clarified the meaning of the SCA’s term “good faith,” but other
courts have weighed in on this question. The Ninth Circuit has held “that the good faith defense
under 18 U.S.C. § 2707(e) is met when the defendant complies with [SCA process] that appears
valid on its face, in the absence of any indication of irregularity sufficient to put the defendant on
14
notice that the [process] may be invalid or contrary to applicable law,” and did not “actually
kn[o]w that the [process] was invalid under the applicable law.” Sams v. Yahoo! Inc., 713 F.3d
1175, 1180–81 (9th Cir. 2013). The Seventh Circuit, meanwhile, has held that a provider is
entitled to raise the good faith exception where SCA process lacks “any indication of irregularity
sufficient to put [the provider] on notice that the [SCA process] was ‘phony.’” McCready v.
eBay, Inc., 453 F.3d 882, 892 (7th Cir. 2006); accord John K. Maciver Inst. for Pub. Pol’y, Inc.
v. Schmitz, 885 F.3d 1004, 1010 (7th Cir. 2018). The Tenth Circuit has concluded that the
SCA’s good faith exception tracks that of the Fourth Amendment, Davis v. Gracey, 111 F.3d
1472, 1484 (10th Cir. 1997), under which an officer’s reliance on a warrant defeats a motion to
suppress unless the warrant was “so facially deficient—i.e., in failing to particularize the place to
be searched or the things to be seized—that the executing officers [could not] reasonably [have]
presume[d] it to be valid.” United States v. Leon, 468 U.S. 897, 923 (1984). Another court has
concluded that “good faith” in the SCA context requires, among other things, “a subjective good
faith belief that [one] disclosed plaintiff's subscriber information pursuant to a signed, valid
warrant.” Freedman v. Am. Online, Inc., 325 F. Supp. 2d 638, 648 (E.D. Va. 2004) (Ellis, J.).
This case presents no need definitively to construe the SCA’s good faith exception, but
the point is that while a target typically will be unable to move to quash an SCA warrant prior to
execution, the provider to whom the SCA warrant is directed has an incentive to move to quash
an apparently defective SCA warrant—namely, to avoid the risk of civil liability—and thereby
stands somewhat in the target’s shoes to vindicate the target’s interests in ensuring a valid SCA
warrant. In fact, the Cloud Act added grounds for which the provider may seek to quash or
modify “legal process” for “the contents of a wire or electronic communication” if the provider
reasonably believes the customer or subscriber is not a U.S. person or resident and “the required
15
disclosure would create a material risk that the provider would violate the laws of a qualifying
foreign government.” 18 U.S.C. § 2703(h)(2)(i)–(ii).
A provider’s ability to move to quash, to be sure, is not a perfect substitute for a target’s
ability to do the same. The question, however, is not whether an SCA warrant is identical to a
subpoena in every respect, but merely whether an SCA warrant is more like a subpoena or a
traditional search warrant. The existence of an actor—the provider to whom an SCA warrant is
directed—with both the opportunity to move to quash a seemingly-deficient SCA warrant and
incentives to do so makes an SCA warrant more akin to a subpoena than to a traditional search
warrant in this regard.10
4. That an SCA Warrant’s Execution Constitutes a “Search” Does Not Render an
SCA Warrant Analogous to a Traditional Search Warrant.
The petitioners argue that “[l]ike a physical search requiring a warrant, the government’s
collection of the content of private communications in electronic form constitutes a search.”
Pet’rs’ Mem. at 8. In so saying, the petitioners appear to assume that a search warrant is the only
instrument by which the government can effectuate a Fourth Amendment search. That an SCA
warrant’s execution constitutes a search within the Fourth Amendment’s meaning, however,
would not establish that an SCA warrant is more analogous to a traditional search warrant than to
a subpoena, as either instrument is used to effectuate a Fourth Amendment search. “[T]he
Fourth Amendment’s protection against unreasonableness” applies to “compulsory production of
10
The petitioners’ contention that “[t]he government appears, at times, to use conventional search warrants
and SCA search warrants interchangeably,” Pet’rs’ Mem. at 8 n.4, merely underscores the differences between SCA
warrants and traditional search warrants. The petitioners assert that “records unsealed by the Reporters Committee
in a separate matter illustrate that government agents used non-SCA search warrants to seize, during a physical
search, computer and electronic records, documents, and materials, electronic information or data, and
correspondence, emails, documents, calendar or diary entries, electronic files, contact information, or data of any
kind which reflect or relate to any communications or contacts.” Id. (internal quotation marks omitted). Of course,
the very fact that those “government agents” physically “seize[d], during a physical search,” the “records,
documents, and materials” in question, id., is precisely what distinguishes the traditional search warrants at issue
there from SCA warrants, which instead compel a provider’s production of information.
16
private papers,” and thus, to a subpoena duces tecum. Subpoena Duces Tecum, 228 F.3d at 347(quoting Hale v. Henkel, 201 U.S. 43, 76 (1906)). “[N]o unreasonable search and seizure”
occurs, however, “when a subpoena, suitably specific and properly limited in its scope, calls for
the production of documents which, as against their lawful owner to whom the writ is directed,
the party procuring its issuance is entitled to have produced.” Id. (quoting Wilson v. United
States, 211 U.S. 361, 376 (1911) (alterations omitted)). A subpoena “sufficiently limited in
scope, relevant in purpose, and specific in directive so that compliance will not be unreasonably
burdensome” thus passes constitutional muster. Id. (quoting See v. City of Seattle, 387 U.S. 541,
544 (1967)). As such, the petitioners’ contention that “the government’s collection of the
content of private communications in electronic form constitutes a search,” Pet’rs’ Mem. at 8, is
a non-sequitur with no bearing whatsoever on whether an SCA warrant is more analogous to a
subpoena or to a traditional search warrant.
5. Any Impact the Court’s Ruling Will Have on the Privacy Protection Act’s
Construction is Not Ground for Reconsideration.
The petitioners argue, for the first time on reconsideration, that “[t]he Court’s
determination that SCA search warrants are akin to subpoenas . . . . introduces troubling
uncertainty into a realm of well-established existing legal protections for the news media.”
Pet’rs’ Mem. at 12. Under the Privacy Protection Act (“PPA”), the government may not, “in
connection with the investigation or prosecution of a criminal offense, [] search for or seize” (1)
“any work product materials possessed by a person reasonably believed to have a purpose to
disseminate to the public a newspaper, book, broadcast, or other similar form of public
communication” or (2) “documentary materials . . . possessed by a person in connection with a
purpose to disseminate to the public a newspaper, book, broadcast, or other similar form of
public communication,” except under certain enumerated circumstances. 42 U.S.C. §
172000aa(a)–(b). One such excepted circumstance is that the government may search for and seize
“documentary materials, other than work product materials,” otherwise subject to the PPA’s
protections, where “such materials have not been produced in response to a court order directing
compliance with a subp[o]ena duces tecum” and “there is reason to believe that the delay in an
investigation or trial occasioned by further proceedings relating to the subp[o]ena would threaten
the interests of justice.” 42 U.S.C. § 2000aa(b)(4)(B). In this circumstance, “the person
possessing the materials shall be afforded adequate opportunity to submit an affidavit setting
forth the basis for any contention that the materials sought are not subject to seizure.” Id.
§2000aa(c).
The petitioners contend that “[t]he Court’s Opinion gives rise to uncertainty with respect
to the PPA’s application to SCA search warrants, which can be used by the government to obtain
the contents of communications between reporters and their sources.” Pet’rs’ Mem. at 14. 11
This argument is unavailing for several reasons.
First, as noted, the petitioners’ previous briefing did not mention the PPA whatsoever, see
Pet’rs’ Mem. Supp. Mot. Unseal. Thus, even if the petitioners’ assertions regarding the PPA
somehow amounted to reversible error, the petitioners’ failure to raise this argument in their
11
The petitioners find error in “[t]he Court’s Opinion, which concludes that a defining feature of a search
warrant was the lack of an opportunity for pre-disclosure challenge by the target of the investigation,” because this
“conflicts with” the PPA, “which ensures that certain warrant targets will have an opportunity to bring a pre-
disclosure challenge.” Pet’rs’ Mem. at 14. The Court recognized that “[a] traditional search warrant . . . generally
provides the target neither prior notice of the search and/or seizure nor ex ante opportunity to quash.” Leopold, 300
F. Supp. 3d at 89 (emphasis added). Use of the term “generally,” id., contemplated that unusual exceptions to this
rule exist. One such exception is 42 U.S.C. § 2000aa(c). At the same time, the Fourth Amendment itself does not
require a search warrant to provide the target pre-execution notice or opportunity to object, see Subpoena Duces
Tecum, 228 F.3d at 348, and the PPA enumerates six distinct circumstances under which the government may search
and seize otherwise-protected “work product” or “documentary materials” without providing the person possessing
such materials any opportunity to challenge the search and seizure. See 42 U.S.C. § 2000aa(a)(1)–(2), (b)(1)–
(4)(A). Congress, in electing to allow, under one particular circumstance, a warrant’s target to challenge the
warrant’s execution ahead of time, has created a narrow exception to, rather than overturned wholesale, the general
rule that a search warrant provides “neither prior notice of the search and/or seizure nor ex ante opportunity to
quash.” See Leopold, 300 F. Supp. 3d at 89.
18
earlier briefing prevents them from doing so for the first time on a motion for reconsideration.
See Leidos, Inc., 881 F.3d at 217.
Second, more significantly, the petitioners’ argument is not a claim of legal error, but
rather, a concern about the precedential impact the Court’s ruling may have in future, yet-to-be-
litigated matters concerning “laws and procedures not directly at issue in this case,” Pet’rs’ Mem.
at 12, to which the petitioner may or may not be party. The petitioners’ dismay that the Court’s
ruling may have undesired precedential value in some future proceeding does not amount to a
showing of error at all, much less a showing of “clear error or . . . manifest injustice” that the
petitioners must make to obtain reconsideration. Messina, 439 F.3d at 758 (quoting Firestone,
76 F.3d at 1208).
Third and finally, it is far from clear that the PPA’s procedural limits on the issuance of
search warrants for information possessed by reporters, properly construed, do in fact apply to
SCA warrants. The PPA was enacted in 1980, prior to the Internet’s widespread usage, see Pub.
L. 96-440, § 101, 94 Stat. 1879 (1980), and last amended in 1996, see Pub. L. 104–208, § 101(a),
110 Stat. 3009 (1996), “when commenters still referred to the Internet as the information super-
highway,” Bryan R. Kelly, #privacyprotection: How the United States Can Get Its Head Out of
the Sand and into the Clouds to Secure Fourth Amendment Protections for Cloud Journalists, 55
WASHBURN L.J. 669, 690 (2016). Indeed, the petitioners identify no case evaluating the PPA’s
applicability to SCA warrants, much less holding the PPA to apply to SCA warrants, nor has the
Court identified any such cases. In any event, this matter does not involve the PPA and presents
no need to construe that statute.12
12
The petitioners argue that certain Department of Justice regulations, which contemplate prior notice to a
journalist or news organization prior to a search warrant’s execution, “assume[] SCA search warrants are akin to
other warrants” and “make[] clear that SCA search warrants fall within the scope of the PPA.” Pet’rs’ Mem. at 15
(citing 28 C.F.R. § 50.10(b)(2)(ii) (“The policy also governs applications for warrants to search the premises or
19
6. The Petitioners Offer No New Arguments as to Whether a First Amendment
Right of Access Attaches to PR/TT and § 2703(d) Materials.
The petitioners argue that the Court erred in determining that no First Amendment right
of access attaches to § 2703(d) and PR/TT orders, asserting that PR/TT and § 2703(d) orders are
functionally equivalent to search warrants, which “have been ‘traditionally open to public
scrutiny,’” and “that the ‘method of execution’ of PR/TT and Section 2703(d) orders . . . does
not functionally distinguish them from search warrants.” Pet’rs’ Mem. at 15–16 (quoting In re
Reporters Comm. for Freedom of the Press, 773 F.2d 1325, 1337 (D.C. Cir. 1985)). The Court’s
Memorandum Opinion, which determined that “Section 2703(d) and PR/TT orders are even less
analogous to traditional search warrants than are SCA warrants, differing in both execution and
applicable legal standard,” already has rejected this reasoning, Leopold, 300 F. Supp. 3d at 91,
and the Court need not rehash these reasons on a motion for reconsideration, see Leidos, Inc.,
881 F.3d at 217 (recognizing that a Rule 59(e) motion “may not be used to relitigate old
matters”).
In a last gasp effort to save their First Amendment right of access claim, the petitioners
contend that “[l]ogic [] strongly supports” recognition of this right because access will (1) allow
“the public” to “ensure that judges are not merely serving as a rubber stamp for the police,” and
(2) “enable judges to more effectively perform their oversight function when it comes to law
enforcement use of PR/TT devices and Section 2703(d) orders.” Pet’rs’ Mem. Supp. App.
property of members of the news media, pursuant to [Rule] 41; or to obtain from third-party [providers of ECS or
RCS] the communications records or business records of members of the news media, pursuant to [the SCA].”)).
Any position that the Department of Justice has taken on the interpretive question of whether an SCA warrant falls
within the PPA’s scope, and the degree of deference, if any, due to such interpretation under Chevron U.S.A., Inc. v.
Natural Resources Defense Council, Inc., 467 U.S. 837 (1984), is not at issue in this matter, and the Court declines
the petitioners’ highly irregular insistence on litigating that question. In any event, even if the PPA were construed
not to apply to SCA warrants, nothing prevents the Department of Justice, as a matter of policy, from obtaining and
executing SCA warrants only in circumstances where the PPA would allow the execution of a traditional search
warrant. In other words, even if the PPA does not by its own terms apply to SCA warrants, the Department of
Justice nonetheless may elect to treat the PPA as a floor rather than a ceiling with respect to use of SCA warrants.
20
Unseal at 23–24; Pet’rs’ Mem. at 11, 16. The “logic” prong of the First Amendment right of
access analysis was not previously addressed since the petitioners’ failure to show a history of
access to the materials at issue “preclude[d] petitioners from prevailing on their First
Amendment right of access claim.” Leopold, 300 F. Supp. 3d at 91; see also Brice, 649 F.3d at
795 (“The public possesses a qualified First Amendment right of access to judicial proceedings
where (i) there is an ‘unbroken, uncontradicted history’ of openness, and (ii) public access plays
a significant positive role in the functioning of the proceeding.” (quoting Richmond Newspapers,
Inc. v. Virginia, 448 U.S. 555, 573 (1980) (emphasis added)); Reporters Comm., 773 F.2d at
1332 (“[B]oth these [‘history’ and ‘logic’] questions must be answered affirmatively before a
constitutional requirement of access can be imposed.”). Indeed, El-Sayegh considered a
petitioner’s “fail[ure] to satisfy the first of the two necessary criteria for a First Amendment right
of access” claim fatal to the petitioner’s claim. 131 F.3d at 161. Rather than present any new
argument as to why the First Amendment affords right of access to § 2703(d) and PR/TT
materials the Court has not already heard and rejected, the petitioners merely repeat arguments
they already have made and insist that the Court got it wrong the first time. This will not do at
the motion for reconsideration stage.13 See Leidos, Inc., 881 F.3d at 217.
13
In asserting that the First Amendment affords a right of access to § 2703(d) and PR/TT materials, the
petitioners cite EEOC v. Nat’l Children’s Ctr., Inc., 98 F.3d 1406, 1409 (D.C. Cir. 1996), for the proposition that
“Section 2703(d) and PR/TT orders are court orders to which the public right of access has traditionally applied.”
Pet’rs’ Mem. at 15. This is misleading in context, as National Children’s Center neither addressed § 2703(d) or
PR/TT orders whatsoever nor involved a First Amendment right of access claim, but held that a district court abused
its discretion under the Hubbard factors in sealing a consent decree between a federal agency and private employer.
Id. at 1408. Nat’l Children’s Ctr. merely explained that “the starting point in considering a motion to seal court
records is a strong presumption in favor of public access to judicial proceedings.” Id. at 1409. The Court’s
Memorandum Opinion cited Nat’l Children’s Ctr. for this very proposition, see Leopold, 300 F. Supp. 3d at 80, and
concluded that the common law (although not the First Amendment) affords the petitioners a qualified, prospective
right of access to the judicial records at issue, see id. at 69. Nat’l Children’s Ctr. thus lends no weight to the
petitioners’ First Amendment right of access claim.
21
Moreover, had the Court reached the “logic” prong, the petitioners would be entitled to
no access under the First Amendment greater than that to which the Court already has
determined the petitioners are entitled under the common law, due to the nature of the criminal
investigative materials at issue. In deciding whether logic supports a First Amendment right of
access, a court asks “whether public access plays a significant positive role in the functioning of
the particular process in question.” Press-Enters. Co. v. Superior Court of Cal. for the Cty. of
Riverside, 478 U.S. 1, 8 (1986). “[I]t takes little imagination to recognize that there are some
kinds of government operations that would be totally frustrated if conducted openly.” Id. at 8–9.
For example, “‘the proper functioning of our grand jury system depends upon the secrecy of
grand jury proceedings.’” Id. at 9 (quoting Douglas Oil Co. v. Petrol Stops Nw., 441 U.S. 211,
218 (1979)). “[S]afeguarding the confidentiality of grand jury proceedings” serves “several
distinct interests,” such as “assur[ing] that persons who are accused but exonerated by the grand
jury will not be held up to public ridicule.” Douglas Oil Co., 441 U.S. at 218–219. While the
USAO’s use of SCA and PR/TT surveillance authorities in the course of ongoing criminal
investigations may not always, technically, be grand jury materials subject to Federal Rule of
Criminal Procedure 6(e), the same considerations highlighted by the Supreme Court regarding
the need for secrecy in grand jury proceedings apply to ongoing criminal investigations.
Public access to the judicial records at issue would raise real risks of disclosing
personally identifiable information that could damage the reputations of persons investigated but
never charged, jeopardize the safety of cooperating defendants and witnesses, and even
discourage potential cooperators in the future. Public access also could compromise future
investigations by revealing the existence or workings of “investigative methods and techniques,
the very efficacy of which may rely, in large part, on the public’s lack of awareness that the
22
USAO employs them.” Leopold, 300 F. Supp. 3d at 107. These considerations illustrate that
logic weighs against any broader right of access under the First Amendment than that which the
Court already has recognized under the common law.
This conclusion is confirmed by the fact that while Congress has mandated public
reporting on the use of certain surveillance authorities to facilitate oversight, those mandates are
carefully circumscribed. For example, the Administrative Office of the U.S. Courts is required to
publish an annual report “concerning the number of applications for orders authorizing or
approving the interception of wire, oral, or electronic communications,” and associated
information, 18 U.S.C. § 2519(3), based on reports of judges who issued wiretap orders “that
expired during the preceding year,” or denied applications for such orders, id. § 2519(1).
Notably, this reporting is for wiretap orders that have “expired” rather than are ongoing. Id. In
addition, the Attorney General is required annually to report to Congress “on the number of pen
register orders and orders for trap and trace devices applied for by law enforcement agencies of
the Department of Justice,” with specified associated information, id. § 3126, as well as on the
number of accounts, with associated information, for which “emergency” voluntary disclosures
by providers have been made to governmental entities, id. § 2702(d). The Director of the
Federal Bureau of Investigation (“FBI”), must also report annually to Congress regarding the
number, with associated information, of requests for subscriber and transactional records in
counterintelligence investigations. Id. § 2709(f). No similar reporting requirements have been
mandated with respect to SCA applications or orders under any provision of § 2703. Congress,
in mandating reporting of certain categories of information concerning the government’s use of
surveillance authorities, but not SCA warrants, § 2703 orders, or active PR/TT orders in ongoing
23
criminal investigations, has voiced its judgment concerning the types of information significant
for oversight and for which disclosure serves the public interest.
7. The Petitioners’ Accusation that the Court Failed to Address an Asserted Right
of Access to Court Dockets is False.
The petitioners assert that “that the Court erred in failing to give separate consideration to
the public’s distinct First Amendment right of access to court dockets.” Pet’rs’ Mem. at 17. The
Court did not “separate[ly],” id., address the petitioners’ particular First Amendment right of
access claim to docket information because the Court concluded that no First Amendment right
of access whatsoever attaches to any of the judicial records the petitioners seek to unseal. See
Leopold, 300 F. Supp. 3d at 92. This wholesale denial of petitioners’ First Amendment right of
access claim reached all aspects of the records at issue and naturally encompassed any aspect of
the petitioners’ claim concerning docket information. Significantly, the Court did recognize a
prospective common law right of access to certain SCA warrant, § 2703 order and PR/TT order-
related information, to be disclosed in intervals at least six months after issuance of the legal
process when ongoing criminal investigations are more likely to be closed. See Leopold, 300 F.
Supp. 3d at 94–95, 108.
8. The Reporters Committee Did Not Seek Real-Time Docket Information From
the Beginning.
The petitioners assert that the Court “erred as a factual matter when it found that
Petitioners did not ‘from the outset’ seek access to ‘real-time docket information’ on a forward-
looking basis.” Pet’rs’ Mem. at 18 (quoting Leopold, 300 F. Supp. 3d at 94). The petitioners
argue that the Reporters Committee has always sought real-time disclosure of docket information
for government applications under SCA’s §§ 2703(a) and (d), and for PR/TT orders. See id.
While petitioners may now wish to re-write the history of this litigation, the record is clear. The
very first document the Reporters Committee filed in this matter was a motion to intervene
24
expressing the Reporters Committee’s intent to seek unsealing of “records relating to
applications for court orders for the use of electronic surveillance tools in investigations that are
no longer active,” as well as “public access to dockets and docket entries concerning applications
and orders for the use of such tools.” Reporters Comm.’s Unopposed Mot. Intervene, Attach. 1,
Mem. Pts. & Auths. at 13, ECF No. 16-1 (emphasis added). The Court granted the Reporters
Committee’s motion the next day, see Minute Order, dated Aug. 18, 2016, and the Reporters
Committee immediately filed an application “to unseal all applications and supporting
documents . . . seeking” SCA warrants, § 2703(d) orders, and PR/TT orders, “as well as any
court orders granting or denying any [such orders], in connection with any investigation that is
no longer active,” as well as to make public “dockets and docket entries reflecting such
applications and orders.” Reporters Comm.’s Appl. at 1 (emphasis added). Based on a plain
reading of these papers, the Reporters Committee’s request was understood to be limited to
“such applications and orders” appearing in “no longer active” criminal investigations. To seek
unsealing of docket information only in closed investigations is of course logically inconsistent
with seeking real-time unsealing of such information, as the USAO only applies for, and the
Court only grants, surveillance orders in active, ongoing investigations.
Any ambiguity in the records sought to be unsealed was resolved by the petitioners
reiterating over the litigation’s course that they sought relief only as to closed investigations.
See, e.g., Hr’g Tr. at 26:16–17 (Dec. 19, 2016), ECF No. 31 (“[W]e understand the open
investigations issue, and we have stayed away from it.”); id. at 23:3–5 (reiterating that the
petitioners do not seek to “expos[e] an ongoing investigation” and have “limited [thei]r requests
to closed investigations”); id. at 26:4, 16–17 (asserting that “we understand the open
investigations issue, and we have stayed away from it,” including with respect to “docket
25
sheets”). The Reporters Committee thus limited, from its very first filings in this matter, the
unsealing of docket information it sought to closed criminal investigations. In any event, even
had the Reporters Committee sought real-time disclosure of docket-information from the outset,
the common law would afford no right of access to such information in light of the significant
administrative burden, which the Court has detailed at length, see Leopold, 300 F. Supp. 3d at
97–99, that would attend the process of redaction to avoid impinging on personal privacy or
revealing information that would jeopardize related ongoing investigations.
Significantly, the petitioners cite no case law whatsoever recognizing any entitlement to
real-time unsealing of the type and magnitude of information the petitioners seek. United States
v. Appelbaum (In re U.S. for an Order Pursuant to 18 U.S.C. Section 2703(D)), which the
petitioners repeatedly cite in support of their First Amendment right of access claim, rejected a
“challenge to the docketing procedures in the Eastern District of Virginia,” holding that “there is
no First Amendment right of access to § 2703(d) proceedings,” and thus that “district courts
[need not] publicly docket each matter in the § 2703(d) context.” 707 F.3d 283, 295 (4th Cir.
2013); see also id. (describing the petitioners’ demand as “uncharted waters”).14
14
In a similar vein, the petitioners assert that the Court failed to consider the petitioners’ request for docket
information from PR/TT applications the USAO filed in 2017. See Pet’rs’ Mem. at 22. This too is incorrect. The
Court identified “a prospective right of access . . . to certain categories of information, which will be disclosed on a
periodic basis, regarding the total number of PR/TT . . . applications filed by the USAO, the number and type of
accounts that such applications target, the names of the providers to which these applications are directed, and the
primary criminal offense under investigation for these applications.” Leopold, 300 F. Supp. 3d at 108. Pursuant to
this right of access, the Court has unsealed a list of all PR/TT applications that the USAO filed during the first nine
months of 2017, see Order & Notice, ECF No. 1, In re Disclosure of Pen Registers From Jan. 1, 2017 Through Sept.
30, 2017, 18-mc-61 (Apr. 30, 2018) (Howell, C.J.), which list is identical in kind to the PR/TT docket information
the Court previously has unsealed during this litigation, see Order & Notice to the Parties, Attachs. A–C, Lists of
Misc. Case Nos. for PR/TT Appls. & Orders Filed in 2008–2010 by USAO, ECF Nos. 37-1, 37-2, 37-3; Order &
Notice to the Parties, Attachs. A–E, Lists of Misc. Case Nos. for PR/TT Appls. & Orders Filed in 2011, 2013–2016
by USAO, ECF Nos. 32-1, 32-2, 32-3, 32-4, 32-5; Order & Notice to the Parties, Attach. A, List of Misc. Case
Numbers for PR/TT Appls. & Orders Filed in 2012 by USAO (“2012 PR/TT List”), ECF No. 22-1. A similar list
covering the remaining months in 2017 will be unsealed in due time. Thus, the petitioners are incorrect to say that
the Court did not consider the petitioners’ request for docket information as to PR/TT applications that the USAO
filed in 2017, and, even if this request were not resolved in the context of this litigation, the unsealing of PR/TT
docket information already accomplished renders this request moot.
26
* * *
In sum, the petitioners have identified no error in the Court’s analysis of their asserted
First Amendment right of access to the surveillance materials at issue, and thus are not entitled to
reconsideration in this regard. See Messina, 439 F.3d at 758.
B. The Court Properly Weighed the Administrative Burden the Petitioners’ Requested
Retrospective Relief Would Impose.
To establish a right of access to judicial records under the common law, a petitioner must
show that “the public’s interest in disclosure” outweighs “the government’s interest in keeping
the document[s] secret.” Wash. Legal Found. v. U.S. Sentencing Comm’n, 89 F.3d 897, 902
(D.C. Cir. 1996) (internal quotation marks omitted). In undertaking this analysis, courts weigh
six “generalized” factors, enumerated in United States v. Hubbard, as well as any relevant
“particularized” factors,” to determine “the precise weight to be assigned . . . to the always strong
presumption in favor of public access to judicial proceedings.” 650 F.2d 293, 317 (D.C. Cir.
1980). The six generalized Hubbard factors are “(1) the need for public access to the documents
at issue; (2) the extent of previous public access to the documents; (3) the fact that someone has
objected to disclosure, and the identity of that person; (4) the strength of any property and
privacy interests asserted; (5) the possibility of prejudice to those opposing disclosure; and (6)
the purposes for which the documents were introduced during the judicial proceedings.” Metlife,
Inc. v. Fin. Stability Oversight Council, 865 F.3d 661, 665 (D.C. Cir. 2017) (quoting EEOC v.
Nat’l Children’s Ctr., Inc., 98 F.3d 1406, 1409 (D.C. Cir. 1996)).
The Court concluded that five of the six generalized Hubbard factors weigh in favor of
some limited right of access to SCA warrant, § 2703(d) order, and PR/TT order materials, but
that the significant administrative burdens on the USAO and Clerk’s Office that would attend
retrospective access to these materials constituted a “particularized” factor, Hubbard, 650 F.2d at
27
322–24, weighing against recognition of a retrospective right of access. Leopold, 300 F. Supp.
3d at 97–103. The Court further concluded that the common law afforded the petitioners a
limited prospective right of access to certain categories of information regarding SCA warrant, §
2703(d) order, and PR/TT order materials, to be disclosed on a periodic basis. Id. at 103–07.
The Court’s recognition of a prospective right of access rested in significant part on
administrative and operational changes to the filing and processing of sealed government
surveillance applications that the USAO and Clerk’s Office recently adopted, pursuant to a
Memorandum of Understanding, that significantly ease the administrative burdens that limited,
forward-looking unsealing of surveillance materials would entail. Id. at 108.
The petitioners argue that the Court erred in weighing, under Hubbard, the administrative
burden that recognizing a retrospective right of access would entail, and assert that considering
administrative burden under Hubbard will disadvantage members of the public seeking to access
judicial records without conserving judicial resources. Pet’rs’ Mem. at 21. For the reasons that
follow, these arguments are unpersuasive.
1. The Court Did Not Err in Recognizing Administrative Burden as a Cognizable
Factor Under Hubbard.
The petitioners find error in the Court’s consideration of the administrative burden that
compliance with the petitioners’ requested retrospective relief would impose on the USAO and
Clerk’s Office. Pet’rs’ Mem. at 19.15 The petitioners argue that “to the extent courts can
15
The petitioners object to the Court’s characterization of their request for unsealing as “across-the-board”
and giving rise to an “all-or-nothing situation,” complaining that such descriptions are “inaccurate[.]” Pet’rs’ Mem.
at 21 (citing Leopold, 300 F. Supp. 3d at 101, 103). As the Court’s Memorandum Opinion made clear, the
petitioners’ request for unsealing sought “access to extracted information from USAO-initiated PR/TT matters and §
2703(d) docket information in closed matters filed over a nine-year period.” Leopold, 300 F. Supp. 3d at 101. The
Court noted the petitioners’ own contention, asserted through multiple declarations, that “access to less than one
hundred percent of USAO-initiated PR/TT matters would have little to no value, and in fact might be worse than
useless by yielding incomplete and misleading information.” Id. at 61; see also id. at 59–61 (collecting declarations
through which the petitioners asserted that unsealing extracted information from less than 100% of PR/TT matters
for a given year would produce no useful information and in fact might yield misleading results); Pet’rs’ Mem.
28
consider interests beyond the six enumerated factors identified by the D.C. Circuit in Hubbard,
those interests must be connected to the content of the records at issue,” id., but cite no authority
to support this claim. Instead, they only note Hubbard’s instruction that “the potential for
prejudice inherent in the documents’ release must be assessed with specific reference to the
documents’ contents,” 650 F.2d at 323 n.116, which language they say “makes clear that the
countervailing interests sought to be protected by sealing in a given case must be connected to
the contents of the specific records at issue,” Pet’rs’ Mem. at 20. This language, however,
applies only where the particularized interest weighing against disclosure is in fact “the potential
for prejudice inherent in the documents’ release,” Hubbard, 650 F.2d at 323 n.116, not where, as
here, the particularized interest weighing against disclosure is something different altogether. In
this regard, Hubbard’s very next line clarifies that “[t]he possibility of prejudice is [] another
‘particularized’ interest which may be asserted to deny public access.” Id. (emphasis added).
This language’s natural import is that particularized interests that can weigh against unsealing
are not limited to prejudice potentially stemming from release of the document’s contents.
Indeed, Hubbard instructs courts to weigh “the particularized privacy or other interests
that” a “defendant may assert” to oppose unsealing, without defining or limiting in any way
which “particularized . . . other interests” a court may consider. 650 F.2d at 323. The Court
previously explained this point, see Leopold, 300 F. Supp. 2d at 82 & n.19 (“Hubbard makes
clear . . . that a court also must consider such particularized interests as specific contexts make
relevant,” and “that privacy interests are not the only type of particularized interest a court may
Supp. App. Unseal at 37 (“Because information from a non-statistically significant 10% sampling of PR/TT matters
will not, among other things, allow journalists or the public to identify trends or identify non-routine requests,
Petitioners respectfully request the following relief, which is necessary for the public to gain meaningful insight into
the sealed PR/TT matters filed by the USAO in this District.”). While the petitioners’ tactic to urge the unsealing of
extracted information from “one hundred percent” of the sealed matters at issue, rather than some lesser sampling
amount, may have backfired by creating an unduly burdensome “all-or-nothing situation,” petitioners cannot be
heard now to complain that the Court inaccurately described the petitioners’ litigation position.
29
consider in evaluating a motion to unseal.”), and the petitioners identify no flaw in the Court’s
reasoning. The petitioners’ contention that the administrative burden that would attend large-
scale unsealing is not a cognizable interest under Hubbard simply finds no support in that or any
other opinion.16
The petitioners emphasize that “the purpose for which the documents at issue were
introduced,” Pet’rs’ Mem. at 23, is the “single most important element” of Hubbard analysis.
650 F.2d at 321. While the Court recognized that this factor weighs in favor of disclosure, see
Leopold, 300 F. Supp. 3d at 96–97, since the purpose for which documents were introduced
bears heavily on whether to recognize a common law right of access at all, this factor bears less
heavily on the precise scope of the right of access to be recognized. There is no inconsistency in
concluding that the important purpose the materials at issue play in judicial proceedings counsels
for a right of access, and that the administrative burden that would attend retrospective unsealing
counsels for a purely prospective scope to that right of access. Furthermore, the purpose the
materials at issue serve do not weigh so heavily in favor of disclosure as the petitioners seem to
think. SCA warrants, § 2703(d) orders, and PR/TT orders enable the government to collect
information in the course of an ongoing criminal investigation. Pre-indictment criminal
investigations require secrecy to function, so as to curb “the risk that those about to be indicted
would flee” or spoliate evidence and assure that persons exonerated by the investigation, or who
16
The petitioners highlight that in Metlife, the D.C. Circuit instructed the district court to “[a]pply Hubbard to
the records in this case,” which consisted of over two thousand pages of documents, because “the district court is
best suited to conduct that analysis given its considerable familiarity with those records.” 865 F.3d at 675–76. This
case is inapposite since there, the party seeking to retain records under seal made no argument that administrative
burden weighed against disclosure, and so the D.C. Circuit did not consider, much less reject, such argument. See
generally id.; Cooper Indus., Inc. v. Aviall Servs., Inc., 543 U.S. 157, 170 (2004) (“Questions which merely lurk in
the record, neither brought to the attention of the court nor ruled upon, are not to be considered as having been so
decided as to constitute precedents.” (internal quotation marks omitted)). In fact, the district court in Metlife did not
apply the Hubbard factors at all, having concluded erroneously that a federal statute superseded the Hubbard test.
See Metlife, 865 F.3d at 675. The Metlife panel, moreover, made a point of declining to direct the district court’s
Hubbard analysis. Id. at 676.
30
assist the government as cooperating witnesses, “will not be held up to public ridicule.” Douglas
Oil Co., 441 U.S. at 219. For these reasons, the purpose that the materials at issue serve lean
only narrowly toward disclosure under Hubbard, and then only toward a limited amount of
disclosure with respect only to closed investigations.
The petitioners say that “administrative burden may be asserted in every case in which a
member of the public seeks to unseal records to which the common law right of access applies.”
Pet’rs’ Mem. at 20; accord id. at 24–25 (“[A]dministrative burden is conceivably present in
every case where a member of the public seeks access to sealed judicial records.”). This is true
enough, but the weight a court will assign such concern will correspond to the volume of
documents a petitioner seeks to unseal. Where petitioners seek to unseal “specific documents,”
Leopold, 300 F. Supp. 3d at 101, the administrative burden that attends unsealing may be slight,
and so will not weigh heavily on a court’s Hubbard analysis. Where, in contrast, petitioners seek
to unseal “wholesale categories of sealed matters filed over an almost decade-long period,” id.,
the administrative burden such unsealing will entail appropriately may weigh more heavily in a
court’s Hubbard analysis. The petitioners say that “[t]reating administrative burden as a
Hubbard factor would make the public’s ability to obtain access to judicial records dependent
not on the content of the particular records at issue, but rather on the type (or extent) of relief
sought in a particular case.” Pet’rs’ Mem. at 20. This is correct. Where the type of record
sought to be unsealed requires careful review prior to unsealing to ensure that information
properly retained under seal is not disclosed, and where the volume of the materials sought be
unsealed amplifies the burden that undertaking such review will impose on a party and/or the
Court, Hubbard properly allows a court to cognize such burden in weighing a motion to unseal.
See 650 F.3d at 323.
31
On this point, as the Court has noted, Leopold, 300 F. Supp. 3d at 101, the only judicial
decisions involving similarly broad unsealing requests cited by either party denied such requests
on the ground of administrative infeasibility. See In re Sealed Case, 199 F.3d 522, 524, 526
(D.C. Cir. 2000); Order Den. Mot. Unseal Docs. & Publicly Docket Ct. Rs. at 1–3, In re Jennifer
Granick & Riana Pfeffkorn (“Granick Order”), No. 16-mc-80206-KAW (N.D. Cal. June 23,
2017). The petitioners’ silence as to these decisions reflects that their position—that
considerations of administrative burden cannot tip the scales against unsealing—is not tenable.17
The petitioners are critical that the Court’s Memorandum Opinion “marks the first time
that a court has found that the administrative burden of unsealing is an appropriate factor to
consider when balancing the public’s interest in disclosure against competing interest under
Hubbard.” Pet’rs’ Mem. at 24. This criticism is misleading to the extent the petitioners suggest
that courts do not weigh administrative burden in resolving requests to unseal.
17
Hartford Courant Co. v. Pellegrino, 380 F.3d 83, 97 (2d Cir. 2004), which the petitioners now cite, for the
first time, for the proposition that “courts have corrected systemic denials of the public’s rights of access to judicial
records notwithstanding associated administrative burden,” Pet’rs’ Mem. at 24, is not to the contrary. Pellegrino
recognized “a qualified First Amendment right of access to docket sheets” in “thousands of cases where sealing
procedures prohibited court personnel from allowing the public to access the files in those proceedings and, in
certain comparatively rare instances, from acknowledging the existence of these cases altogether.” 380 F.3d at 86,
102. Pellegrino is distinguishable on two grounds. First, the dockets at issue involved civil and criminal matters,
rather than pre-indictment investigatory matters, such as “grand jury proceedings,” which Pellegrino acknowledged
“function properly only if kept secret.” Id. at 96; see also id. (“The only decision denying a First Amendment right
to public docketing concerned grand jury proceedings, which the Supreme Court has emphasized are entitled to a
presumption of secrecy.”). The public’s interest in transparency as to civil and criminal cases, cf. U.S. CONST.
amend. VI (guaranteeing a “public trial”), does not extend to pre-indictment investigative matters, which require
secrecy to function properly, see Pellegrino, 380 F.3d at 96. Pellegrino thus did not confront the need to prevent
inadvertent disclosure of materials properly left under seal to protect individuals’ privacy or related ongoing
criminal investigations. Second, the government never contended that administrative burden counseled against
recognizing such a right of access, and so Pellegrino never passed upon such an argument. See Cooper Indus., 543
U.S. at 170.
The petitioners also cite United States v. Valenti, which held that the U.S. District Court for the Middle
District of Florida’s maintenance of a “sealed docket in criminal cases” was “inconsistent with affording the various
interests of the public and the press meaningful access to criminal proceedings.” 987 F.2d 708, 710, 715 (11th Cir.
1993). Specifically, the petitioners cite Valenti’s rejection of the government’s assertion “that this court should
avoid binding the district court to any formal procedure that is unduly burdensome.” Pet’rs’ Mem. at 24 (citing
Valenti, 987 F.2d at 715). Like Pellegrino, however, Valenti involved criminal cases, not pre-indictment criminal
investigative matters, as to which significant law enforcement, public safety and privacy interests counterbalance the
public’s interest in transparency.
32
As the Court previously has explained, In re Sealed Case held the district court did not
abuse its discretion in concluding that “mandatory public docketing of grand jury ancillary
proceedings . . . . would be unduly burdensome.” 199 F.3d at 525–26; see also Leopold, 300 F.
Supp. 3d at 101 (citing and analyzing In re Sealed Case). In re Sealed Case further recognized
that “administrative burdens [can] justif[y] the denial of across-the-board docketing.” Id. at 527.
The D.C. Circuit thus has acknowledged that considerations of administrative burden can justify
denial of broadly-sweeping requests to unseal. Likewise, as the Court previously has explained,
the petitioners in Granick sought “the unsealing of the docket sheets of all sealed criminal
miscellaneous cases filed between January 1, 2006 and December 31, 2011.” Granick Order at
1. Granick held that such “request for wholesale unsealing is not practicable, as each case needs
to be evaluated on an individual basis to ensure that unsealing is permissible.” Id. at 2–3; see
also Leopold, 300 F. Supp. 3d at 101 (citing and analyzing Granick). The petitioners fail to
acknowledge, much less explain away, either In re Sealed Case and Granick.
The petitioners thus are incorrect to the extent they assert that courts do not consider
administrative burden in resolving broad requests to disclose materials maintained under seal.
2. Negative Practical Consequences Will Not Attend Recognition of Administrative
Burden as Cognizable Under Hubbard.
The petitioners argue that recognizing administrative burden as a cognizable factor under
Hubbard will have two “significant practical implications that both disadvantage members of the
public seeking to assert their right of access to judicial records and run counter to any goal of
conserving judicial resources.” Pet’rs’ Mem. at 21. First, the petitioners argue that allowing
courts to “deny the public access to judicial records . . . based upon the type or extent of access
that is sought . . . will shift the burden to members of the public to attempt to identify the exact
right amount of access that a court will not deem too administratively burdensome for the
33
Government.” Id. This is correct. A petitioner seeking access to dockets maintained under seal
must be mindful that an overly-broad request for unsealing may impose on the Clerk’s Office
and/or USAO such undue administrative burden as to weigh against disclosure under Hubbard.
This does place on the petitioner some responsibility to exercise good judgment in deciding the
scope of unsealing to seek, especially where, as here, the judicial records to be unsealed require
careful, page-by-page review prior to disclosure to ensure that no information properly left under
seal inadvertently is disclosed, so as to protect ongoing investigations and the considerable
privacy interests of potential subjects or targets of criminal investigations that may not have
resulted in any formal charges. To require a petitioner to contemplate the possibility that an
overly-burdensome request for unsealing may be denied does not amount to legal error.
Second, the petitioners argue that allowing courts to deny requests for unsealing that pose
undue administrative burden “will also incentivize future petitioners to file multiple petitions,
each seeking a different, limited form of access, in the hopes of satisfying what is an entirely
unclear standard for determining what level of public access to judicial records is low-burden
enough to be available under the common law.” Pet’rs’ Mem. at 21. This assumes courts will
turn a blind eye toward such transparent gamesmanship. Nothing in Hubbard compels courts to
indulge such tactics, of course. A court reviewing a petition for access to sealed judicial records
properly may consider, under Hubbard, the access to such records already granted through other,
notionally separate petitions, as well as the administrative burden that granting each notionally
separate petition collectively may impose on the Clerk’s Office and government.
Finally, the petitioners describes the Court’s conclusion as holding “that administrative
burden to the Government outweighs the public’s common law right of access with respect to the
specific relief sought by Petitioners as to SCA Search Warrant, Section 2703(d), and PR/TT
34
matters.” Pet’rs’ Mem. at 25. This characterization is inaccurate, suggesting the Court
concluded that the public in fact has a retrospective common law right of access to the
surveillance materials the petitioners seek to unseal, and that considerations of administrative
burden “outweigh[ed]” this right of access. Id. That is not what the Court said. Rather, the
Court recognized that under Hubbard, a court may consider administrative burden in deciding
whether to recognize any right of access in the first place, not that such a right of access exists
but nonetheless gives way to countervailing considerations. See Leopold, 300 F. Supp. 3d at 103
(“[T]he common law right of access does not entitle the petitioners to any additional
retrospective relief.”); see also id. at 108 (“No retrospective right of access is recognized, in
consideration of the significant administrative burdens that retrospective disclosure would
impose on the Clerk’s Office and USAO.”).
Similarly, the petitioners’ assertion that “the Court’s recognition of administrative burden
as a new Hubbard factor will allow violations of the public’s common law right of access so
long as those violations are broad and systemic enough to be administratively challenging to
remedy,” Pet’rs’ Mem. at 24, is predicated on a misunderstanding of the Court’s decision. First,
as explained above, administrative burden is not a new Hubbard factor, but one Hubbard has
always allowed a court to weigh. See 650 F.2d at 323 (instructing courts to weigh “the
particularized privacy or other interests that” a “defendants may assert” to oppose unsealing
(emphasis added)). Second, also as explained above, cognizing administrative burden under
Hubbard will not “allow violations of the public’s common law right of access” to go
unremedied, as a court may conclude that no asserted common law right of access exists in the
first place where recognizing such right of access would impose undue administrative burdens.
C. The Court Appropriately Identified the Factual Findings Supporting a Conclusion
that the Common Law Affords No Additional Retrospective Relief.
35
Finally, the petitioners argue that the Court failed “to make on-the-record factual findings
in support of its determination that the Government made the requisite showing to overcome the
public’s presumptive right of access to all of the SCA Search Warrant, Section 2703(d), and
PR/TT Materials at issue in this case.” Pet’rs’ Mem. at 22. This is incorrect. The Court has
already identified, in great detail, the practical challenges that attend the wide-scale unsealing of
sealed surveillance applications and associated materials, including, most significantly, the high
degree of individual review of each page of each document proposed to be unsealed, which is
needed to ensure that confidential information properly retained under seal is not inadvertently
disclosed.
The Court found that “completing the extraction process for one hundred percent of
PR/TT matters that [the USAO] initiated between the years 2008 through 2016, minus the
twenty-four 2012 PR/TT applications from which information has already been extracted, would
take” between 720 and 788 hours, the latter figure amounting to “nearly 33 days working around
the clock nonstop, or nearly twenty 40-hour workweeks.” Leopold, F. Supp. 3d at 98.
“Complying with such a mandate,” the Court found, “would divert significant amounts of
valuable AUSA time and resources.” Id.
The Court further found that unsealing Ҥ 2703(d) matter docket information . . . would
impose similarly significant resource burdens on the Court and Clerk’s Office by consuming
substantial amounts of staff time—in particular, time necessary to ensure that information
properly left under seal is not inadvertently disclosed.” Id. The Court found that “assembling
lists of historical § 2703(d) matters would require multiple Court and Clerk’s Office staff
members to scrutinize meticulously every entry on each page of every list released to purge these
lists of any information bearing on personal identification or law enforcement investigative
36
concerns,” and that “[c]ompleting this painstaking process of examination and redaction for the
PR/TT Lists took several Court and Clerk’s Office personnel days to complete.” Id. at 99. As
the Court explained, “[t]he lack of standardized case names or captions on applications and
orders filed during the relevant nine-year period makes this task particularly challenging, as these
captions have sensitive information bearing on personal identification peppered throughout.” Id.
The fact that § 2703(d) captions were standardized only recently, prior to which “such
captions not infrequently would reference not § 2703(d) itself but only 18 U.S.C. § 2705(b), the
SCA’s delayed notice provision,” moreover, means that “providing accurate and comprehensive
§ 2703(d) docket information would require carefully reviewing each § 2705(b) application that
the USAO had filed to ascertain whether the application actually pertained to non-disclosure of a
§ 2703(d) order, a task fraught with peril given that § 2705(b)’s nondisclosure provision is
available for both § 2703(d) orders and to grand jury subpoenas, which reveal ‘matter[s]
occurring before the grand jury’ and therefore are protected by Rule 6(e)’s secrecy protections.”
Id. (quoting FED. R. CRIM. P. 6(e)(2)). “Ensuring that disclosure of § 2703(d) materials would
not inadvertently reveal confidential grand jury matters,” the Court found, “would require Court
and Clerk’s Office staff to undertake additional manual, time-consuming review.” Id. The Court
found that while administrative changes to the USAO’s filing and the Clerk’s Office’s docketing
of PR/TT and § 2703(d) orders will minimize such practical challenges going forward, “such
administrative burdens are unavoidable as to disclosure of docket information concerning
historical . . . applications.” Id.
Finally, the Court considered “the amount of information already publicly disclosed
during the course of this litigation,” including “(1) the total numbers of USAO-filed PR/TT
matters during the period of 2008 through 2016; (2) the total numbers of § 2703(d) and SCA
37
warrant matters, retrieved using certain search criteria, filed by the USAO and DOJ components
during this period; (3) certain docket information concerning PR/TT matters the USAO initiated
during this period; (4) over 100 pages of redacted documents from four representative sample
PR/TT matters from 2012; and (5) fifteen categories of extracted information from a
representative sample of ten percent of USAO-filed PR/TT matters from 2012.” Id. at 100.
These disclosures, the Court found, “have already provided an unprecedented level of
transparency into the process of judicial review of the USAO’s use of PR/TT and SCA
authorities to collect evidence in criminal investigations, and enables the petitioners to inform
and educate the public.” Id.
In sum, the Court has amply identified the factual findings supporting a conclusion that
the common law affords no additional retrospective relief. Based on these extensive findings, no
need is presented to clarify the Court’s Memorandum Opinion or Order “to set forth the specific
factual findings upon which” the Court reached that conclusion. Pet’rs’ Mem. at 25.
IV. CONCLUSION
For the foregoing reasons, the petitioners’ motion for reconsideration is denied. An
appropriate Order accompanies this Memorandum Opinion.
Date: August 16, 2018
__________________________
BERYL A. HOWELL
Chief Judge
38