327 F. Supp. 3d 1 | D.C. Cir. | 2018
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
The petitioners now seek reconsideration of the Court's Order and Memorandum Opinion. See Pet'rs' Mot. Reconsideration, *6ECF 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 ,
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
(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.
On February 26, 2018, the Court granted in part and denied in part the petitioners'
*7petitions. 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 ,
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 ,
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 ,
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 ,
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 ,
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.
1. The Court Correctly Concluded That the SCA's "Warrant" Nomenclature Does Not Support a First Amendment Right of Access.
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 ,
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),
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 *11of 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."
That an SCA warrant incorporates the probable cause standard, see
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"
*132. 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."
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.
*14warrant'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. ,
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.
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
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 *15thereby 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 disclosure would create a material risk that the provider would violate the laws of a qualifying foreign government."
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.
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 private papers," and thus, to a subpoena duces tecum. Subpoena Duces Tecum ,
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. § 2000aa(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."
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.
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 *17regarding the PPA somehow amounted to reversible error, the petitioners' failure to raise this argument in their earlier briefing prevents them from doing so for the first time on a motion for reconsideration. See Leidos, Inc. ,
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 ,
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,
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 *18right 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 ,
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. 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 ,
*19Moreover, 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 ,
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 USAO employs them." Leopold ,
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,
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],"
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 ,
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 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 ,
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."
*22* * *
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 ,
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 ,
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 ,
The petitioners argue that the Court erred in weighing, under Hubbard , the administrative burden that recognizing a *23retrospective 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.
Indeed, Hubbard instructs courts to weigh "the particularized privacy or other interests that" a "defendant may assert" to oppose unsealing, without defining or limiting *24in any way which "particularized ... other interests" a court may consider.
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.
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 *25volume of documents a petitioner seeks to unseal. Where petitioners seek to unseal "specific documents," Leopold ,
On this point, as the Court has noted, Leopold ,
*26The 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.
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."
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 Government."
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 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.
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
C. The Court Appropriately Identified the Factual Findings Supporting a Conclusion that the Common Law Affords No Additional Retrospective Relief.
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 *28showing 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 ,
The Court further found that unsealing " § 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."
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
*29Finally, 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 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."
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.
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 ,
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 ,
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 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. ,
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.").
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 ,
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. ,
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 ,
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.
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 ,
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."
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 ,
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
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. ,
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 ,
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 ,
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."
Hartford Courant Co. v. Pellegrino ,
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."