243 F. Supp. 3d 1209
D. Kan.2017Background
- Between May 14 and July 1, 2015, the district court authorized wiretaps of Brandon Steven and Michael O’Donnell; calls with several Wichita Eagle and McClatchy journalists were intercepted.
- In February 2017 the DOJ sent § 2518(8)(d) notice letters to the journalists informing them their communications had been intercepted.
- The Wichita Eagle and individual journalists (Movants) moved to inspect intercepted communications and the wiretap applications/orders.
- The Government explained its practice is to send notice to all interceptees (not only targets or those a judge specifically ordered notified).
- The Court treated the Movants as notified interceptees with statutory standing to move for disclosure but emphasized that notice alone did not indicate they were targets.
- The Court denied the motion, concluding disclosure is not in the interest of justice while the government’s investigation remains ongoing and no indictments have been filed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether §2518(8)(d) permits a notified interceptee to obtain intercepted communications and wiretap applications/orders now | Movants: §2518(8)(d) authorizes them to move for disclosure and the court should grant disclosure if it is "in the interest of justice" without applying §2518(8)(a)-(b) standards | Gov't: §2518(8)(d) must be read with §2518(8)(a)-(b); disclosure remains governed by sealed‑materials rules and good‑cause/§2517 standards; presumption against disclosure | Court: Even assuming Movants may move, disclosure is not in the interest of justice now; motion denied |
| Whether public‑interest (right to know re: public figures) favors disclosure | Movants: Public’s interest in transparency about investigations of public figures weighs for disclosure | Gov't: Disclosure would harm an ongoing investigation; Title III presumes secrecy | Court: Public interest outweighed by need to protect ongoing investigation; no disclosure now |
| Whether Movants’ private rights (privacy/property in communications; fairness) require disclosure | Movants: They have liberty/property interests in communications and deserve to know what was intercepted and why | Gov't: Other privacy interests and investigative integrity counsel secrecy; statute presumes nondisclosure | Court: Movants’ privacy/fairness interests insufficient to overcome investigative and third‑party privacy concerns at this stage |
| Whether notice under §2518(8)(d) implies judicial finding that disclosure is warranted | Movants: Receiving §2518(8)(d) notice implies a judge determined notification was in the interest of justice | Gov't: Practice is to notify all interceptees; notice does not reflect a judicial finding about significance | Court: Government’s practice negates any inference that notice means calls were significant; no special inference arises |
Key Cases Cited
- In re Warrant Authorizing Interception of Oral Commc'ns, 673 F.2d 5 (1st Cir.) (district court may order disclosure to intercepted party)
- In re N.Y. Times Co. to Unseal Wiretap & Search Warrant Materials, 577 F.3d 401 (2d Cir.) (Title III creates strong presumption against disclosure of wiretap materials)
- In re Applications of the Kan. City Star, 666 F.2d 1168 (8th Cir.) (presumption of nondisclosure under Title III and analysis of public‑interest claims)
- Stoddard v. United States, 710 F.2d 21 (2d Cir.) (upholding nondisclosure where disclosure could harm ongoing investigation)
- Nat'l Broad. Co. v. U.S. Dep't of Justice, 735 F.2d 51 (2d Cir.) (noting Title III’s presumption against disclosure)
- Gelbard v. United States, 408 U.S. 41 (1972) (Congress enacted Title III to protect privacy in electronic surveillance)
- Press-Enter. Co. v. Superior Court, 464 U.S. 501 (1984) (openness promotes fairness and public confidence in criminal proceedings)