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UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA

IN THE MATTER OF THE APPLICATION
OF JASON LEOPOLD TO UNSEAL
CERTAIN ELECTRONIC SURVEILLANCE
APPLICATIONS AND ORDERS

)
)
) Misc Action No. ____________
)
)

PETITION TO UNSEAL RECORDS
Jason Leopold, by and through undersigned counsel, respectfully petitions the
Court, pursuant to Local Rule of Criminal Procedure 57.6, for an Order unsealing certain
records of this Court and implementing a protocol whereby certain sealing and
nondisclosure orders have a presumptive expiration date. The records Mr. Leopold seeks
to unseal relate to authorization for the installation and use of electronic surveillance
devices and for access to stored communications. Specifically, Mr. Leopold seeks to
make public all applications, supporting affidavits, and court orders regarding pen
registers, trap and trace devices, tracking devices, cell site location, stored email,
telephone logs, and customer account records from electronic service providers, except
for those which relate to an ongoing investigation. The court records relating to these
documents are typically sealed in their entirety including even the docket numbers.

In support of this petition, Mr. Leopold avers as follows:

BRIEF FACTUAL BACKGROUND
1.

Petitioner Jason Leopold spent three-and-half years as lead investigative

reporter of Truthout.org, a nonprofit newsroom, and is now a regular contributor to Al

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Jazeera English where he covers Guantanamo, national security, counterterrorism, civil
liberties, human rights and open government issues. Additionally, he is the editor-at-large
for The Public Record. His reporting has appeared in The Nation, The Wall Street
Journal, The Financial Times, Salon, CBS Marketwatch, The Los Angeles Times and
numerous other domestic and international publications.
2.

The court records sought by Mr. Leopold relate to law enforcement

agencies’ use of pen registers, trap and trace devices, tracking devices, cell site location,
stored email, telephone logs, and customer account records from electronic service
providers. Excluded from this request are wiretap applications and orders.
3.

Pen register and trap and trace devices are powerful tools used by law

enforcement agencies to intercept non-content information from electronic
communications such as the “to” and “from” lines of emails, the telephone numbers a
person dials and those from which calls are received, and the IP address of websites a
person visits.
4.

Unlike many other government seizures of private records, orders for pen

registers and trap and trace devices do not require law enforcement officials to secure a
search warrant. Applications for pen registers and trap and trace devices are governed by
the Pen Register Statute, 18 U.S.C. §§ 3121-27.
5.

Law enforcement agencies may also obtain, without a warrant, the

contents of wire or electronic communications that have been in electronic storage for
more than 180 days; records or other information pertaining to a subscriber to or
customer of an electronic communication service or remote computing service; and the
name, address, local and long distance telephone connection records, or records of
session times and durations, length of service (including start date) and types of service
utilized, telephone or instrument number or other subscriber number or identity,
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including any temporarily assigned network address, and means and source of payment
for such service (including any credit card or bank account number) of a subscriber to or
customer of such service. Applications for an order requiring disclosure of this
information are governed by the Stored Communications Act, 18 USCS §§ 2701-2712.
6.

As a result of the lack of a warrant requirement, public oversight is a

crucial check on the executive’s power to use these surveillance tactics.
7.

Americans have strong privacy interests in the information that such

surveillance techniques capture, including the persons they call on their telephone and the
identities of those they email. With such private information at stake, Americans also
have a clear interest in knowing the circumstances under which the government is
compiling lists of such information. Such government lists reveal a great deal about
individuals, including their political associations, their religious beliefs, the identities of
their close friends, and what topics interest them during sessions of private research and
reading.
8.

The precise number of pen register applications and orders is not known to

Petitioner. However, information from the Department of Justice reveals that in this
Court for calendar year 2010, the Bureau of Alcohol, Tobacco, and Firearm obtained 1
order for a pen register, and subsequently 1 extension of the order; the Drug Enforcement
Agency obtained 34 orders for telephone pen registers and 1order for an email pen
register; the United States Marshals Service obtained approximately 52 orders for pen
registers; and the Federal Bureau of Investigation obtain approximately 167 orders for
telephone pen registers, and subsequently extensions of 2 of the orders.
9.

The precise number of trap and trace device applications and orders is not

known to Petitioner. However, information from the Department of Justice suggests that

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almost all pen register applications and orders also contain requests or authorizations to
install and use trap and trace devices.
10.

The precise number of applications and orders under the Stored

Communications Act is not known to Petitioners. However, on information and belief, it
is the government’s practice in some judicial districts to combine pen/trap applications
with requests for customer information under the Stored Communications Act.

RELIEF REQUESTED
11.

By this petition, Mr. Leopold seeks to make public applications to and

orders of this Court regarding pen registers, trap and trace devices, tracking devices, cell
site location, stored email, telephone logs, and customer account records from electronic
service providers. This petition does not seek applications and orders relating to wiretaps
and does not seek applications and orders relating to ongoing law enforcement
investigations.
12.

Upon information and belief, each application for a pen register and/or

trap and trace device and/or disclosure under the Stored Communications Act was
assigned a unique docket number on the miscellaneous docket, but no listing of these
docket numbers is publicly available on the Court’s website or otherwise. Mr. Leopold
therefore requests that the United States Attorney be directed to provide a list of the
specific docket numbers associated with the applications and orders which are the subject
of this petition to unseal.
13.

As set forth more fully in the accompanying memorandum, the public has

a qualified right of public access and a First Amendment right to these court records, and
no proper basis exists for continuing to keep the material under seal.

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14.

The public has a legitimate interest in knowing the bases upon which the

orders were sought. The Court should unseal the requested material to allow public
access.
15.

Additionally, the Court should change its procedures to provide for a

presumptive expiration date of 180 days on all sealing and nondisclosure orders. The
Court should permit an extension of an additional 180 days if the government certifies
that the investigation is still active or shows the existence of exceptional circumstances,
e.g., danger to the life or physical safety of an individual. For purposes of certification, a
currently inactive or dormant investigation should not qualify for extension based on the
mere possibility of reactivation at a later date. Additional extensions should require a
correspondingly greater specificity in the certification for each such extension. The
government should be given 30 days advance notice before the gag orders are lifted and
unsealed.

WHEREFORE, for the reasons stated herein and in the accompanying declarations and
memorandum of points and authorities in support hereof, Mr. Leopold respectfully
requests that the Court enter an order unsealing the requested material and setting
presumptive expiration dates on future sealing and nondisclosure orders.
Respectfully Submitted,
______________________
Jeffrey L. Light
D.C. Bar #485360
1712 Eye St., NW
Suite 915
Washington, DC 20006
(202)277-6213
Jeffrey.Light@yahoo.com
Dated: July 15, 2013

Counsel for Petitioner
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CERTIFICATE OF SERVICE
I hereby certify that this 15th day of July, 2013, I have served a copy of the
foregoing PETITION TO UNSEAL RECORDS as well as the Memorandum of Points
and Authorities and Proposed Order by Certified Mail on:
United States Attorney’s Office
555 4th St., NW
Washington, DC 20530
______________________
Jeffrey L. Light
D.C. Bar #485360
1712 Eye St., NW
Suite 915
Washington, DC 20006
(202)277-6213
Jeffrey.Light@yahoo.com
Counsel for Petitioner

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UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA

IN THE MATTER OF THE APPLICATION
OF JASON LEOPOLD TO UNSEAL
CERTAIN ELECTRONIC SURVEILLANCE
APPLICATIONS AND ORDERS

)
)
) Misc Action No. ____________
)
)

MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF
PETITION TO UNSEAL RECORDS
Through this application, Petitioner Jason Leopold seeks to unseal court records
concerning authorizations to install and use pen registers and trap and trace devices and
authorizations to obtain stored communications. Specifically, Mr. Leopold seeks to make
public all applications, supporting affidavits, and court orders regarding pen registers,
trap and trace devices, tracking devices, cell site location, stored email, telephone logs,
and customer account records from electronic service providers, except for those which
relate to an ongoing investigation. Mr. Leopold further requests that the Court implement
a protocol whereby certain sealing and nondisclosure orders have a presumptive
expiration date

Background
Pen Register / Trap and Trace Devices
A pen register is a device which records numbers called from a particular phone
line and is similar to a trap and trace device, which records incoming numbers.1 The

1

More precisely, a “pen register” is a “device or process which records or decodes
dialing, routing, addressing, or signaling information transmitted by an instrument or
facility from which a wire or electronic communication is transmitted, provided,
however, that such information shall not include the contents of any communication, but
such term does not include any device or process used by a provider or customer of a
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terms, often used together, also cover the recording of Internet routing information and
addresses are often used together. See USA PATRIOT Act of 2001, 107 P.L. 56, §
216(c)(2) and (3).
Because the installation and use of a pen register does not constitute a search
under the Fourth Amendment, the government need not obtain a warrant. Smith v.
Maryland, 442 U.S. 735, 744 (1979). Congress responded by enacting the Pen Register
and Trap and Trace Statute, 18 USC §§ 3121-3127 (hereinafter “Pen Register Statute”) as
part of the Electronic Communications Privacy Act of 1986.
The Pen Register Statute requires law enforcement to obtain a court order prior to
using a pen register and/or trap and trace device. To obtain an order, an attorney for the
Government or a state law enforcement officer or investigator makes an application in
writing under oath or equivalent affirmation, to a court of competent jurisdiction. 18
USC § 3122(a). The application must identify the applicant and the law enforcement
agency conducting the investigation, and certify that the information likely to be obtained
is relevant to an ongoing criminal investigation being conducted by that agency. 18 USC
§ 3122(b). Upon submission of the application with proper certification, “the court shall
enter an ex parte order authorizing the installation and use of a pen register or trap and
trace device[.]” 18 USC § 3123(a). The court’s order may only initially authorize the
wire or electronic communication service for billing, or recording as an incident to
billing, for communications services provided by such provider or any device or process
used by a provider or customer of a wire communication service for cost accounting or
other like purposes in the ordinary course of its business.” 18 USC § 3127(3).
A “trap and trace device” is “a device or process which captures the incoming electronic
or other impulses which identify the originating number or other dialing, routing,
addressing, and signaling information reasonably likely to identify the source of a wire or
electronic communication, provided, however, that such information shall not include the
contents of any communication.” 18 USC § 3127(4).
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use of a pen register and trap and trace device for up to 60 days, but additional extensions
of 60 days may be granted upon application. 18 USCS § 3123(c).
Significantly for present purposes, the Pen Register Statute contains a
nondisclosure provision requiring that the “order be sealed until otherwise ordered by the
court.” 18 USCS § 3123(d)(1). Further, the Internet service company or telephone
carrier may not “disclose the existence of the pen register or trap and trace device or the
existence of the investigation to the listed subscriber, or to any other person, unless or
until otherwise ordered by the court.” 18 USCS § 3123(d)(2). A typical order from this
Court granting an application under the Pen Register Statute concludes with, “this Order
and Application shall be sealed until otherwise ordered by the Court and that the Service
Provider, its agents, employees, and affiliates, shall not disclose the existence of the pen
register and trap and trace device or the existence of the investigation to the listed
subscriber, or to any other person, unless or until otherwise ordered by the Court.” See
e.g., In the Matter of the Application of the United States of America for an Order
Authorizing Pen Register and Trap and Trace on Cellular Telephone Number 571-9910811, Misc. No. 1:11-mc-31 (DAR) (D.D.C. Jan. 25, 2011).

Stored Communications and Transactional Records
Congress enacted the Stored Communications Act, 18 USC §§ 2701, et seq.
(hereinafter “Stored Communications Act”) as Title II of the Electronic Communications
Privacy Act of 1986. The Stored Communications Act permits the government, without
a warrant, to require disclosure by a service provider “of the contents of a wire or
electronic communication that has been in electronic storage in an electronic

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communications system for more than one hundred and eighty days[.]” 18 U.S.C. §
2703(a). To obtain a court order requiring disclosure, the government must offer
“specific and articulable facts showing that there are reasonable grounds to believe that
the contents of a wire or electronic communication, or the records or other information
sought, are relevant and material to an ongoing criminal investigation.” 18 U.S.C. §
2703(d). The court issuing a § 2703(d) order may quash or modify the order on motion
made by a service provider “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.” Id.
Unlike the Pen Register Statute, the Stored Communications Act does not contain
any provisions for sealing of orders granting access to records. Under 18 U.S.C. §
2705(b), the government may request an order for “preclusion of notice,” but such an
order may only be entered in limited circumstances where notification of the existence of
an order “will result in— (1) endangering the life or physical safety of an individual; (2)
flight from prosecution; (3) destruction of or tampering with evidence; (4) intimidation of
potential witnesses; or (5) otherwise seriously jeopardizing an investigation or unduly
delaying a trial.” The duration of any order precluding notice pursuant to 18 U.S.C. §
2705(b) is “for such period as the court deems appropriate”

Argument
I.

Standard of adjudication

a. First Amendment right of access

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“The first amendment guarantees the press and the public a general right of access to
court proceedings and court documents unless there are compelling reasons
demonstrating why it cannot be observed.” Washington Post v. Robinson, 935 F.2d 282,
287, 290 U.S. App. D.C. 116 (D.C. Cir. 1991). Whether the First Amendment guarantees
attach to a particular proceeding or document depends on “considerations of experience
and logic.” Press-Enterprise Co. v. Superior Court, 478 U.S. 1, 9 (1986)(“PressEnterprise II”). In applying this test, a court must ask (1) “whether the place and process
have historically been open to the press and general public,” and (2) “whether public
access plays a significant positive role in the functioning of the particular process in
question.” Id. at 8.
If this Court determines that a First Amendment right of access attached, there is a
presumption of openness which can only be overcome by a compelling reason for
denying access, which exists only where “closure is essential to preserve higher values
and is narrowly tailored to serve that interest.” Press-Enterprise Co. v. Superior Court of
California, 464 U.S. 501, 510 (1984)(“Press-Enterprise I”).

b. Common law right of access
There is a well-established common law right of public access to inspect court
records. Nixon v. Warner Communications, Inc., 435 U.S. 589, 597 (1978) (“the courts
of this country recognize a general right to inspect and copy . . .judicial records and
documents”); In re Application of National Broadcasting Co., 653 F.2d 609, 612, 209
U.S. App. D.C. 354 (D.C. Cir. 1981) (observing that the “existence of the common law
right to inspect and copy judicial records is indisputable”). Because of the “different and

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heightened protections of access that the first amendment provides over common law
rights,” however, the Court need only address the common law right of access if it
determines that the First Amendment does not apply to the document at issue here.
Washington Post, 935 F.2d at 288 n.7. Whether a document is subject to the common
law right of access depends on “the role it plays in the adjudicatory process.” United
States v. El-Sayegh, 131 F.3d 158, 163, 327 U.S. App. D.C. 308 (D.C. Cir. 1997).
Access to judicial records under the common law is determined by evaluating the
factors set forth in United States v. Hubbard, 650 F.2d 293, 208 U.S. App. D.C. 399
(D.C. Cir. 1980): “(1) the need for public access to the documents at issue; (2) the extent
of previous public access to the documents at issue; (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.” EEOC v. Nat’l Children’s Ctr., 98 F.3d 1406, 1409, 321 U.S. App. D.C.
243 (D.C. Cir. 1996) (citing Hubbard, 650 F.2d at 317-22).

c. Nondisclosure
A nondisclosure order is essentially a gag order that must be evaluated as contentbased prior restraints, subject to the most exacting scrutiny. In re Sealing & NonDisclosure, 562 F. Supp. 2d 876, 881-82 (S.D. Tex. 2008).

II.

Right of access to court-issued orders

a. Whether the documents are “judicial records”

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Because orders issued by the court are plainly “judicial records,” United States v.
Appelbaum, 707 F.3d 283, 290 (4th Cir. 2013)(“it is commonsensical that judicially
authored or created documents are judicial records”), the Court may proceed to consider
the merits of Mr. Leopold’s request for access to the electronic surveillance orders.

b. First Amendment right of access
Under the “experience” prong of the Press-Enterprise II “experience and logic” test,
the First Amendment right of access attaches to court-issued electronic surveillance
orders. Electronic surveillance orders are most analogous to an executed search warrant.
See In re Sealing & Non-Disclosure, 562 F. Supp. 2d 876, 892 (S.D. Tex. 2008)(“the
most analogous cases [to electronic surveillance orders] are those dealing with sealed
search warrants” Cf. Appelbaum, 707 F.3d at 286, 291 n.9 (at the “at the pre-grand jury
phase of an ongoing criminal investigation,” orders issued under 18 U.S.C. § 2703(d) are
“most analogous to sealed or unexecuted search warrants”).
Historically, executed search warrants have been available for public inspection. In
re Search Warrant for Secretarial Area Outside the Office of Thomas Gunn, 855 F.2d
569, 573 (8th Cir.1988) (holding that the right to inspect search warrant materials arises
under both common law and the First Amendment). Decisions which have found a right
of access under the common law also lend support to the existence of a right of access
under the First Amendment . In re New York Times Co., 585 F. Supp. 2d 83, 89 (D.D.C.
2008)(“The fact that there is a common law tradition of right of access is an appropriate
consideration to take into account when examining the scope of the First Amendment”;

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In re Application of Newsday, Inc., 895 F.2d 74, 79 (2nd Cir. 1990); Baltimore Sun Co. v.
Goetz, 886 F.2d 60, 64-65 (4th Cir. 1989).
This Court recently went so far as to order that a new category be added to its website
where “all search warrants . . . will be publicly available after execution, unless a
separate sealing order is entered to redact all or portions (sic) when the government
makes the showing required by United States v. Hubbard, 650 F.2d 293 (D.C. Cir. 1980)
and Washington Post v. Robinson, 935 F.2d 282, 290 U.S. App. D.C. 116 (D.C. Cir.
1991).” In re Application for Search Warrant for Email Account, Mag. No. 10-291-M01, 2013 U.S. Dist. LEXIS 73350 (D.D.C. May 23, 2013)(order by Chief Judge). This
decision is in accord with other case law finding a historical right of access to executed
search warrants under the First Amendment and the common law.
Turning to the “logic” prong of the First Amendment test, the D.C. Circuit has
recognized the importance of public oversight of the executive branch through
examination of electronic surveillance orders obtained without a warrant or judicial
determination of probable cause. For example, in ACLU v. United States DOJ, 655 F.3d
1, 3 & n.2, 398 U.S. App. D.C. 1, 3 (D.C. Cir. 2011), a FOIA case, the plaintiff sought
information relating to the federal government’s use of warrantless cell phone tracking
through § 2703(d) orders. The D.C. Circuit found “a significant public interest in
disclosure” of the requested information where “[t]he use of and justification for
warrantless cell phone tracking is a topic of considerable public interest: it has received
widespread media attention and has been a focus of inquiry in several congressional
hearings considering, among other things, whether the Electronic Communications
Privacy Act of 1986, Pub. L. No. 99-508, 100 Stat. 1848 (1986), should be revised either

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to limit or to facilitate the practice.” Id. at 13. Further, “[t]he disclosure sought by the
plaintiffs would inform this ongoing public policy discussion by shedding light on the
scope and effectiveness of cell phone tracking as a law enforcement tool. . . . Disclosure
would also provide information regarding how often prosecutions against people who
have been tracked are successful, thus shedding some light on the efficacy of the
technique and whether pursuing it is worthwhile in light of the privacy implications.
Information from suppression hearings in these cases could provide further insight
regarding the efficacy of the technique by revealing whether courts suppress its fruits,
and would disclose the standard or standards the government uses to justify warrantless
tracking. Information from suppression hearings would also provide facts regarding the
duration of tracking and the quality of tracking data, facts that would inform the public
discussion concerning the intrusiveness of this investigative tool.” Id. at 13-14.
This Court has entered the controversy over warrantless cell phone tracking in
response to a request by the government under a combined Stored Communications Act /
Pen Register request for cell site information. In In re Order Authorizing the Release of
Prospective Cell Site Information, 407 F. Supp. 2d 134, 134 (D.D.C. 2006), the
government sought an order requiring disclosure of “the location of cell site/sector
(physical address) at call origination (for outbound calling), call termination (for
incoming calls) and, if reasonably available, during the progress of a call, on a real time
basis.” Magistrate Judge Facciola denied the request in a published opinion, but it
appears to be rare, at least in this jurisdiction, for a decision granting the government’s
request to be made public. Thus, the public is without crucial information from which to
evaluate the far more significant issue of the manner and frequency during which

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individuals’ privacy interests are being invaded. Accordingly, the “logic” test is met here
and the First Amendment right of access attaches to the electronic surveillance orders.
Given that this petition seeks only access to orders for which the underlying
investigation is no longer active, the government cannot contend that it has any further
need for secrecy. Accordingly, the government will not be able to overcome the
presumption of openness under the First Amendment.

c. Common law right of access
The excellent opinion of Magistrate Judge Smith of the United States District
Court for the Southern District of Texas in In re Sealing & Non-Disclosure of
Pen/Trap/2703(d) Orders, 562 F. Supp. 2d 876 (S.D. Tex. 2008) concluded, “sealing . . .
of electronic surveillance orders must be neither permanent nor, what amounts to the
same thing, indefinite.” It is not necessary to repeat here all of the points made by
Magistrate Judge Smith, but it should be sufficient to point out that nothing in Hubbard,
650 F.2d 293, would require a different result.

III.

Right of access to judicial records other than court-issued orders

a. Whether the documents are judicial records
Whether a document is a judicial record depends on “the role it plays in the
adjudicatory process.” United States v. El-Sayegh, 131 F.3d 158, 163, 327 U.S. App.
D.C. 308 (D.C. Cir. 1997). Here, the application, affidavits in support of, and other
material submitted with, a request for a court order, are clearly judicial records. They are

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intended to be relied upon by the court in issuing its order. See Berliner Corcoran &
Rowe LLP v. Orian, 662 F. Supp. 2d 130, 135 (D.D.C. 2009) (denying motion to seal
when “[t]he parties filed exhibits under seal for the purpose of proving their cases to the
Court at the summary judgment stage. As such, the parties explicitly intended the Court
to rely on these materials in adjudicating their dispute”); Zapp v. Zhenli Ye Gon, 746 F.
Supp. 2d 145, 151 (D.D.C. 2010) (“Finally, by filing his Amended Motion for Summary
Judgment and its exhibits, Zapp indicated that he intended for the Court to rely on these
filings in adjudicating his dispute with Ye Gon. The Court finds that this purpose weighs
in favor of the continued disclosure of these filings.”)
Citing the D.C. Circuit’s opinion in El-Sayegh, the Fourth Circuit directly
addressed the question of whether electronic surveillance applications are judicial
records. Appelbaum, 707 F.3d at 291. The court concluded, Ҥ 2703(d) motions are
‘judicial records’ because they were filed with the objective of obtaining judicial action
or relief pertaining to § 2703(d) orders.” Id. This Court should reach the same
conclusion.

b. Access under the First Amendment
An electronic surveillance application is most analogous to an affidavit or other
material submitted in support of a search warrant. Courts to have considered the question
have found the First Amendment presumption of access applies to such material. In re
Search Warrant for Secretarial Area Outside the Office of Thomas Gunn, 855 F.2d at 573
(holding that the right to inspect affidavit and other material supporting a search warrant
arises under the First Amendment).

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Given that this petition seeks only access to orders for which the underlying
investigation is no longer active, the government cannot contend that it has any further
need for secrecy. Accordingly, the government will not be able to overcome the
presumption of openness under the First Amendment.

c. Access under the common law
In In re Search Warrants Issued, Misc. No. 87-186 (JHG), 1990 U.S. Dist. LEXIS
9329 at *10 (D.D.C. July 26, 1990), this Court ordered the partial unsealing of search
warrant affidavits where the warrants had already been executed, the first trial which
resulted from the investigation had been concluded, and the government conceded that its
need for secrecy was over. This decision is in accord with other courts which have found
a similar right of access under the common law. In re Search Warrant for Secretarial
Area Outside the Office of Thomas Gunn, 855 F.2d at 573 (holding that the right to
inspect affidavit and other material supporting a search warrant arises under the common
law).

IV.

Request to change protocol for nondisclosure orders and sealing

a. Standing to challenge nondisclosure orders
Assuming the existence of a willing speaker, the public has a right to receive
information under the First Amendment. Virginia State Bd. of Pharmacy v. Virginia Citizens
Consumer Council, 425 U.S. 748, 756 (1976) (“Freedom of speech presupposes a willing
speaker. But where a speaker exists, as is the case here, the protection afforded is to the
communication, to its source and to its recipients both.”) For Mr. Leopold, as a member of
the media, his ability to receive information is a precondition to the exercise of his own right

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to freedom of speech and the press. Bd. of Educ. v. Pico, 457 U.S. 853, 867 (1982)(“the right
to receive ideas is a necessary predicate to the recipient’s meaningful exercise of his own
rights of speech, press, and political freedom”)(emphasis in original). Thus, Mr. Leopold has
standing to challenge a non-disclosure order directed at another party. See Public Citizen v.
Liggett Group, Inc., 858 F.2d 775, 787 & n.12 (1st Cir. 1988)(finding standing for third-party
to challenge protective order which prohibited dissemination of pre-trial discovery material).
Even if Mr. Leopold did not have standing to challenge the non-disclosure orders, however,
the Court could act sua sponte to change its protocol for handling nondisclosure orders. See
e.g., In re Sealing & Non-Disclosure, 562 F. Supp. 2d 876 (despite absence of challenge to
prior policies, judge changed his policies with respect to duration of non-disclosure orders).

b. Indefinite duration of sealing and non-disclosure orders

Until a few years ago, there was no published opinion addressing whether sealing
and nondisclosure of electronic surveillance orders could be maintained for an indefinite
period beyond the termination of the underlying criminal investigation. On May 30,
2008, however, Magistrate Judge Smith of the United States District Court for the
Southern District of Texas issued a lengthy and well-reasoned opinion which concluded,
“sealing and non-disclosure of electronic surveillance orders must be neither permanent
nor, what amounts to the same thing, indefinite.” In re Sealing & Non-Disclosure of
Pen/Trap/2703(d) Orders, 562 F. Supp. 2d 876, 895 (S.D. Tex. 2008). For substantially
the same reasons as set forth in Judge Smith’s opinion, Mr. Leopold requests that this
Court change its protocol to create a presumptive expiration date on sealing and
nondisclosure orders. Mr. Leopold’s ability to receive, and thus report, on electronic

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 Case 1:13-mc-00712-RWR Document 1 Filed 07/16/13 Page 20 of 20

surveillance orders is severely limited by the indefinite nondisclosure orders which limits
service providers’ ability to speak with him.

Conclusion
For the foregoing reasons, Mr. Leopold requests an Order unsealing electronic
surveillance orders and applications, and implementing a protocol whereby certain
sealing and nondisclosure orders have a presumptive expiration date.
______________________
Jeffrey L. Light
D.C. Bar #485360
1712 Eye St., NW
Suite 915
Washington, DC 20006
(202)277-6213
Jeffrey.Light@yahoo.com
Counsel for Petitioner

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