Forbes Media LLC v. United States, 61 F.4th 1072

Background

The All Writs Act (AWA) allows federal courts to order third parties to provide technical assistance to aid execution of warrants; courts have used it to compel companies (e.g., Sabre) to help locate fugitives.
Inadvertently unsealed S.D. Cal. AWA application (located by Forbes reporter Thomas Brewster) described DOJ requests that Sabre provide travel-account data to help execute an outstanding arrest warrant.
Forbes published an article linking to the unsealed application and identifying the fugitive; the application referenced similar sealed AWA orders in other districts.
Brewster and Forbes petitioned in the N.D. Cal. and W.D. Wash. to unseal AWA orders, applications, supporting materials, sealing motions/orders, and dockets for related matters; the underlying matters involved unexecuted arrest warrants and ongoing investigations.
Both district courts denied the petitions, concluding neither the First Amendment nor the common law creates a right of public access to sealed AWA technical-assistance materials while investigations remain active; courts also found redactions inadequate to protect investigatory interests.
The Ninth Circuit consolidated the appeals and affirmed, reserving whether access might differ once investigations conclude and suspects are apprehended.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
1) Does a qualified First Amendment right of access attach to AWA third-party technical-assistance proceedings and materials for unexecuted arrest warrants in ongoing investigations?	Brewster/Forbes: Yes — public interest and transparency require access; AWA orders are injunctive in nature and similar to other public proceedings.	U.S.: No — AWA proceedings have been traditionally ex parte/under seal and disclosure would jeopardize investigations and law-enforcement techniques.	Held: No — applying Press-Enterprise "experience and logic" test, there is no historical tradition of openness and logic weighs against access; disclosure would harm investigations.
2) Does the common law right of access cover these AWA materials?	Brewster/Forbes: Yes — common law presumption of access to judicial records; public needs (debate, legislative oversight) justify disclosure.	U.S.: No — materials are traditionally secret like grand-jury and pre-indictment warrant materials; no "important public need" outweighs investigatory harms.	Held: No — AWA materials are analogous to grand-jury/pre-indictment warrant materials and fall within the carve-out for records "traditionally kept secret."
3) Should the access inquiry focus on document categories (motions, orders, dockets) rather than the nature of proceedings that produced them?	Brewster/Forbes: Yes — many of the requested document types are ordinarily public and should be treated as presumptively accessible.	U.S.: No — assessing by document label ignores the proceeding’s function and secrecy interests.	Held: No — courts must evaluate access by the nature/class of the underlying proceedings, not by abstract document categories.
4) Were district courts required to adopt reporting or notice obligations (e.g., automatic unsealing or notice when investigations close)?	Brewster/Forbes: Districts should require notice or precommit to future unsealing when investigations end.	U.S.: Such prospective relief is inappropriate absent the specific record; government may prefer its own policies.	Held: Denied as request for relief on appeal; Ninth Circuit left such procedural choices to district courts and did not impose blanket obligations.

Key Cases Cited

Press-Enterprise Co. v. Superior Court, 478 U.S. 1 (1986) (establishes the "experience and logic" test for First Amendment right of access)
Times Mirror Co. v. United States, 873 F.2d 1210 (9th Cir. 1989) (no First Amendment/common-law right of access to search-warrant materials during pre-indictment investigations)
Kamakana v. City and County of Honolulu, 447 F.3d 1172 (9th Cir. 2006) (common-law presumption of access and the ‘‘traditionally kept secret’’ carve-out)
Nixon v. Warner Communications, Inc., 435 U.S. 589 (1978) (recognizes common-law right to inspect judicial records is not absolute)
United States v. Index Newspapers, 766 F.3d 1072 (9th Cir. 2014) (applies access analysis to proceedings ancillary to grand-jury investigations)
In re Copley Press, Inc., 518 F.3d 1022 (9th Cir. 2008) (discusses overcoming First Amendment presumption with compelling governmental interest)
Oregonian Publishing Co. v. U.S. Dist. Court, 920 F.2d 1462 (9th Cir. 1990) (‘‘experience’’ inquiry considers historical openness of the place/process)
Plum Creek Lumber Co. v. Hutton, 608 F.2d 1283 (9th Cir. 1979) (AWA may be used to compel nonburdensome technical assistance in aid of warrants)
United States v. New York Telephone Co., 434 U.S. 159 (1977) (AWA authorizes commands necessary to effectuate court orders)