In re Leopold
327 F. Supp. 3d 1
D.C. Cir.2018Background
- Journalists Jason Leopold and Reporters Committee sought unsealing of years of sealed USAO filings for SCA warrants (18 U.S.C. § 2703(a)), § 2703(d) orders, and pen register/trap-and-trace (PR/TT) orders, asserting First Amendment and common-law access rights.
- The parties narrowed requests to closed investigations and negotiated limited disclosures; dispute remained over scope (retrospective wholesale unsealing vs. limited prospective disclosures).
- District Court (Howell, C.J.) denied a broad First Amendment right of access and refused wholesale retrospective unsealing under the common law because of substantial administrative burdens and law-enforcement/privacy interests.
- The court recognized a limited prospective common-law right to periodic, categorical disclosures (counts of applications, provider names, types of accounts targeted, primary offenses) for closed matters.
- Petitioners moved for reconsideration raising: (1) First Amendment right to access; (2) broader common-law access; and (3) request for clearer factual findings. Court denied reconsideration.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether First Amendment right of access attaches to SCA warrants, §2703(d) orders, and PR/TT orders | Petitioners: these instruments are like traditional search warrants (term "warrant," search character) so history and logic support access | USAO/Court: function/substance shows these resemble subpoenas (third-party production, pre-execution challenge by providers), and public access could harm investigations/privacy | Denied — no First Amendment right of access; petitioners failed to show historical tradition of openness or that logic requires broader access |
| Whether SCA warrants are analogous to traditional search warrants or subpoenas | Petitioners: nomenclature and search/seizure nature make them like search warrants | Court: look to function; SCA warrants compel providers (third-party production), lack required notice to targets, permit provider challenges — thus closer to subpoenas | Held: SCA warrants are more analogous to subpoenas than brick-and-mortar search warrants |
| Whether common law requires wholesale retrospective unsealing of historical sealed surveillance filings | Petitioners: public interest/oversight requires broad disclosure (including docket info) | USAO/Court: massive administrative burden, privacy and investigative harms, and limited additional public benefit; some data already released | Held: no retrospective right; common law permits only limited prospective categorical disclosures due to administrative and safety/privacy concerns |
| Whether the Court made adequate factual findings to support denying retrospective relief | Petitioners: requested on-the-record factual findings showing government met burden | Court/USAO: already made detailed findings (hours, staff time, redaction challenges, nonstandard captions, grand-jury overlap) | Held: Court adequately articulated factual bases; no clarification required; reconsideration denied |
Key Cases Cited
- United States v. Brice, 649 F.3d 793 (D.C. Cir.) (First Amendment access test: history and logic)
- Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555 (U.S.) (public access principles)
- United States v. El-Sayegh, 131 F.3d 158 (D.C. Cir.) (analytical substitution — evaluate new procedures by older analogues)
- United States v. Hubbard, 650 F.2d 293 (D.C. Cir.) (six-factor common-law access balancing and allowance for particularized interests)
- In re Sealed Case, 199 F.3d 522 (D.C. Cir.) (administrative burden can justify denying broad public docketing)
- Press-Enterprises Co. v. Superior Court, 478 U.S. 1 (U.S.) (logic prong: access must play positive role; secrecy may be required for some processes)