Case 2:17-mc-00145-RSL Document 1 Filed 11/15/17 Page 1 of 41 1 2 3 4 5 6 7 8 IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF WASHINGTON AT SEATTLE 9 10 11 12 IN RE PETITION OF INDEX NEWSPAPERS LLC D/B/A THE STRANGER TO UNSEAL ELECTRONIC SURVEILLANCE DOCKETS, APPLICATIONS, AND ORDERS 13 2:17-mc-00145 RSL MISC. CIVIL ACTION NO. _______________ PETITION TO UNSEAL ELECTRONIC SURVEILLANCE DOCKETS, APPLICATIONS, AND ORDERS 14 15 16 17 18 19 20 21 22 23 24 25 DORSEY & WHITNEY LLP PETITION TO UNSEAL ELECTRONIC SURVEILLANCE DOCKETS, APPLICATIONS, AND ORDERS ________ COLUMBIA CENTER 701 FIFTH AVENUE, SUITE 6100 SEATTLE, WA 98104-7043 PHONE: (206) 903-8800 FAX: (206) 903-8820 Case 2:17-mc-00145-RSL Document 1 Filed 11/15/17 Page 2 of 41 TABLE OF CONTENTS 1 2 3 4 5 I. INTRODUCTION ...............................................................................................................1 II. JURISDICTION AND VENUE ..........................................................................................2 III. BACKGROUND .................................................................................................................2 6 A. The Stranger .............................................................................................................2 7 B. Legal Bases for Electronic Surveillance ..................................................................4 8 1. The Pen Register Act ...................................................................................4 9 2. The Stored Communications Act .................................................................5 10 3. The Wiretap Act ...........................................................................................7 11 4. The All Writs Act.........................................................................................8 12 13 14 IV. C. Docketing Practices for Electronic Surveillance Cases in This District ..................9 D. Petitions Seeking To Unseal Surveillance Cases in Other Districts ......................11 LEGAL STANDARDS .....................................................................................................12 15 A. The First Amendment Right of Access to Judicial Records and Proceedings ................................................................................................................................13 17 B. The Common Law Right of Access to Judicial Records .......................................14 18 V. ARGUMENT .....................................................................................................................15 16 19 A. Petitioner Has a Right to Access Basic Docketing Information Regarding Electronic Surveillance Cases in This District.......................................................15 B. Petitioner Has a Right to Access Electronic Surveillance Applications and Orders Filed in This District, Once Secrecy is No Longer Necessary...................19 20 21 22 23 24 25 1. Petitioner Has a Right to Access the Requested Pen Register Act Materials ....................................................................................................21 2. Petitioner Has a Right to Access the Requested Stored Communications Act Materials .................................................................22 DORSEY & WHITNEY LLP PETITION TO UNSEAL ELECTRONIC SURVEILLANCE DOCKETS, APPLICATIONS, AND ORDERS - i ________ COLUMBIA CENTER 701 FIFTH AVENUE, SUITE 6100 SEATTLE, WA 98104-7043 PHONE: (206) 903-8800 FAX: (206) 903-8820 Case 2:17-mc-00145-RSL Document 1 Filed 11/15/17 Page 3 of 41 1 3. Petitioner Has a Right to Access the Requested Wiretap Act Materials ....................................................................................................24 4. Petitioner Has a Right to Access the Requested All Writs Act Materials ....................................................................................................25 2 3 4 C. 5 Redaction Is an Appropriate Mechanism to Address Privacy Interests and Other Concerns with Petitioner’s Request to Unseal Judicial Records .................27 6 VI. SPECIFIC RELIEF REQUESTED....................................................................................28 7 VII. CONCLUSION ..................................................................................................................32 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 DORSEY & WHITNEY LLP PETITION TO UNSEAL ELECTRONIC SURVEILLANCE DOCKETS, APPLICATIONS, AND ORDERS - ii ________ COLUMBIA CENTER 701 FIFTH AVENUE, SUITE 6100 SEATTLE, WA 98104-7043 PHONE: (206) 903-8800 FAX: (206) 903-8820 Case 2:17-mc-00145-RSL Document 1 Filed 11/15/17 Page 4 of 41 TABLE OF AUTHORITIES 1 2 3 4 Page(s) CASES Application of Newsday, Inc., 895 F.2d 74 (2d Cir.1990)............................................................................................ 19 5 6 Associated Press v. U.S. Dist. Court, 705 F.2d 1143 (9th Cir. 1983) ..................................................................................... 13 7 Baltimore Sun Co. v. Goetz, 8 886 F.2d 60 (4th Cir. 1989) ......................................................................................... 18 9 CBS, Inc. v. U.S. Dist. Ct., 10 11 12 13 765 F.2d 823 (9th Cir. 1985) ....................................................................................... 17 Co. Doe v. Public Citizen, 749 F.3d 246 (4th Cir. 2014) ................................................................................. 16, 18 Ctr. for Auto Safety v. Chrysler Group, LLC, 809 F.3d 1092 (9th Cir. 2016) ..................................................................................... 14 14 Dhiab v. Trump, 15 852 F.3d 1087 (D.C. Cir. 2017) ................................................................................... 15 16 EEOC v. Nat’l Children’s Ctr., Inc., 17 18 19 20 98 F.3d 1406 (D.C. Cir. 1996) ..................................................................................... 15 Fed. Trade Comm’n v. Standard Fin. Mgmt. Corp., 830 F.2d 404 (1st Cir. 1987) ........................................................................................ 18 Foltz v. State Farm Mut. Auto. Ins. Co., 331 F.3d 1122 (9th Cir. 2003) ......................................................................... 15, 21, 27 21 Glaxo Grp. Ltd. v. Leavitt, 22 481 F. Supp. 2d 437 (D. Md. 2007) ............................................................................. 26 23 Globe Newspaper Co. v. Superior Court, 24 25 456 U.S. 596 (1982) ............................................................................................... 13, 14 Hagestad v. Tragesser, 49 F.3d 1430 (9th Cir. 1995) ....................................................................................... 15 DORSEY & WHITNEY LLP PETITION TO UNSEAL ELECTRONIC SURVEILLANCE DOCKETS, APPLICATIONS, AND ORDERS - iii ________ COLUMBIA CENTER 701 FIFTH AVENUE, SUITE 6100 SEATTLE, WA 98104-7043 PHONE: (206) 903-8800 FAX: (206) 903-8820 Case 2:17-mc-00145-RSL Document 1 Filed 11/15/17 Page 5 of 41 1 Hartford Courant Co. v. Pellegrino, 2 380 F.3d 83 (2d Cir. 2004)........................................................................................... 17 3 In the Matter of the Application of Jason Leopold to Unseal Certain 4 Electronic Surveillance Applications and Orders, No. 13-mc-00712-BAH (D.D.C.) .......................................................................... 11, 12 5 In the Matter of the Search of an Apple iPhone Seized During the Execution 6 7 8 9 of a Search Warrant on a Black Lexus IS300, California License Plate 5KGD203, No. 15-mj-0451, 2016 U.S. Dist. LEXIS 20543 (C.D. Cal. Feb. 16, 2016) .............................................................................................................................. 9 In re Application and Affidavit for a Search Warrant, 923 F.2d 324 (4th Cir. 1991) ................................................................................. 19, 21 10 11 In re Application of N.Y. Times Co. for Access to Certain Sealed Court Records, 585 F. Supp. 2d 83 (D.D.C. 2008) ................................................................ 17 12 In re Application of the United States, 13 128 F. Supp. 3d 478 (D.P.R. 2015) .............................................................................. 26 14 In re Copley Press, Inc., 15 16 17 18 518 F.3d 1022 (9th Cir. 2008) ............................................................................... 14, 22 In re Motion for Release of Court Records, 526 F. Supp. 2d 484 (FISA Ct. 2007) ............................................................................ 2 In re N.Y. Times Co., 577 F.3d 401 (2d Cir. 2009)......................................................................................... 25 19 In re N.Y. Times Co., 20 828 F.2d 110 (2d Cir. 1987)................................................................................... 24, 25 21 In re Order Requiring Apple, Inc. to Assist in the Execution of a Search 22 Warrant Issued By this Court, 149 F. Supp. 3d 341 (E.D.N.Y. 2016) ........................................................................... 8 23 In re Order Requiring XXX, Inc., No. 14-mj-2258, 2014 U.S. Dist. LEXIS 154743 (S.D.N.Y. Oct. 31, 24 2014) .............................................................................................................................. 8 25 DORSEY & WHITNEY LLP PETITION TO UNSEAL ELECTRONIC SURVEILLANCE DOCKETS, APPLICATIONS, AND ORDERS - iv ________ COLUMBIA CENTER 701 FIFTH AVENUE, SUITE 6100 SEATTLE, WA 98104-7043 PHONE: (206) 903-8800 FAX: (206) 903-8820 Case 2:17-mc-00145-RSL Document 1 Filed 11/15/17 Page 6 of 41 1 In re Petition of Jennifer Granick and Riana Pfefferkorn to Unseal 2 3 4 Technical-Assistance Orders and Materials, No. 16-mc-80206-KAW (N.D. Cal.) ........................................................................... 12 In re Sealed Case, 199 F.3d 522 (D.C. Cir. 2000) ..................................................................................... 16 5 In re Sealing & Non-Disclosure, 6 562 F. Supp. 2d 876 (S.D. Tex. 2008) ....................................................... 17, 20, 21, 28 7 In re Search Warrant for Secretarial Area Outside Office of Gunn, 855 F.2d 569 (8th Cir.1988) ........................................................................................ 19 8 9 In re Special Proceedings, 842 F. Supp. 2d 232 (D.D.C. 2012) ............................................................................. 13 10 In re State-Record Co., Inc., 917 F.2d 124 (4th Cir. 1990) ....................................................................................... 18 11 12 In re U.S. for an Order Authorizing Roving Interception of Oral Commc’ns, 13 349 F.3d 1132 (9th Cir. 2003) ....................................................................................... 8 14 In re Wash. Post, 807 F.2d 383 (4th Cir. 1986) ....................................................................................... 12 15 16 Kamakana v. City & Cnty. of Honolulu, 447 F.3d 1172 (9th Cir. 2006) ..................................................................................... 14 17 Lujan v. Defenders of Wildlife, 504 U.S. 555 (1992) ..................................................................................................... 12 18 19 Media Gen. Operations, Inc. v. Buchanan, 20 417 F.3d 424 (4th Cir. 2005) ....................................................................................... 16 21 Nebraska Press Ass’n v. Stuart, 427 U.S. 539 (1976) ....................................................................................................... 4 22 23 Nixon v. Warner Commc’ns, Inc., 435 U.S. 589 (1978) ................................................................................................. 2, 12 24 Oregonian Publ’g Co. v. U.S. Dist. Court, 920 F.2d 1462 (9th Cir. 1990) ............................................................................... 13, 14 25 DORSEY & WHITNEY LLP PETITION TO UNSEAL ELECTRONIC SURVEILLANCE DOCKETS, APPLICATIONS, AND ORDERS - v ________ COLUMBIA CENTER 701 FIFTH AVENUE, SUITE 6100 SEATTLE, WA 98104-7043 PHONE: (206) 903-8800 FAX: (206) 903-8820 Case 2:17-mc-00145-RSL Document 1 Filed 11/15/17 Page 7 of 41 1 Pepsico, Inc. v. Redmond, 2 46 F.3d 29 (7th Cir. 1995)...................................................................................... 25, 26 3 Press-Enter. Co. v. Superior Court, 464 U.S. 501 (1984) ..................................................................................................... 14 4 5 Press-Enter. Co. v. Superior Court, 478 U.S. 1 (1986) ....................................................................................... 12, 13, 14, 24 6 Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555 (1980) ..................................................................................................... 13 7 8 Times Mirror Co. v. United States, 9 10 873 F.2d 1210 (9th Cir. 1989) ......................................................................... 13, 14, 19 United States v. Appelbaum, 707 F.3d 283 (4th Cir. 2013) ........................................ 22, 23 11 United States v. Bus. of Custer Battlefield Museum and Store, 658 F.3d 1188 (9th Cir. 2011) .............................................................................. passim 12 United States v. Chow, No. 14-cr-00196, 2015 U.S. Dist. LEXIS 114802 (N.D. Cal. Aug. 28, 2015) ............................................................................................................................ 25 14 13 15 United States v. Denedo, 16 17 18 19 556 U.S. 904 (2009) ..................................................................................................... 26 United States v. El-Sayegh, 131 F.3d 158 (D.C. Cir. 1997) ..................................................................................... 14 United States v. Espudo, 954 F. Supp. 2d 1029 (S.D. Cal. 2013) ........................................................................ 23 20 United States v. Index Newspapers LLC, 21 766 F.3d 1072 (9th Cir. 2014) ..................................................................................... 12 22 United States v. Loughner, 23 24 769 F. Supp. 2d 1188 (D. Ariz. 2011) .................................................................. passim United States v. Mendoza, 698 F.3d 1303 (10th Cir. 2012) ................................................................................... 17 25 DORSEY & WHITNEY LLP PETITION TO UNSEAL ELECTRONIC SURVEILLANCE DOCKETS, APPLICATIONS, AND ORDERS - vi ________ COLUMBIA CENTER 701 FIFTH AVENUE, SUITE 6100 SEATTLE, WA 98104-7043 PHONE: (206) 903-8800 FAX: (206) 903-8820 Case 2:17-mc-00145-RSL Document 1 Filed 11/15/17 Page 8 of 41 1 United States v. New York Telephone Company, 2 434 U.S. 159 (1977) ..................................................................................................... 26 3 United States v. Ochoa-Vasquez, 428 F.3d 1015 (11th Cir. 2005) ............................................................................. 16, 17 4 5 United States v. Ressam, 221 F. Supp. 2d 1252 (W.D. Wash. 2002) ................................................................... 25 6 United States v. Ring, 47 F. Supp. 3d 38 (D.D.C. 2014) ................................................................................. 12 7 8 United States v. Tillman, 9 10 No. 07-cr-1209, 2009 U.S. Dist. LEXIS 35400 (S.D.N.Y. Apr. 6, 2009) ................... 27 United States v. Valenti, 987 F.2d 708 (11th Cir. 1993) ..................................................................................... 16 11 12 Wash. Legal Found. v. United States Sentencing Comm’n, 89 F.3d 897 (D.C. Cir. 1996) ....................................................................................... 15 13 STATUTES 14 15 18 U.S.C. §§ 2510-2522 ...................................................................................... 4, 7, 12, 19 18 U.S.C. § 2511(2)(a)(ii) ................................................................................. 7, 24, 29, 31 16 17 18 18 U.S.C. § 2518(8)(b) ...................................................................................................... 24 18 U.S.C. §§ 2701-2712 ............................................................................................. passim 19 18 U.S.C. § 2703 ........................................................................................................ passim 20 18 U.S.C. § 2705(b) ............................................................................................................. 7 21 18 U.S.C. §§ 3121-3127 ............................................................................................. passim 22 18 U.S.C. § 3123 ............................................................................................... 5, 21, 29, 30 23 24 18 U.S.C. § 3124 ................................................................................................... 21, 29, 30 18 U.S.C. § 3127 ................................................................................................................. 5 25 28 U.S.C. § 1331 ................................................................................................................. 2 DORSEY & WHITNEY LLP PETITION TO UNSEAL ELECTRONIC SURVEILLANCE DOCKETS, APPLICATIONS, AND ORDERS - vii ________ COLUMBIA CENTER 701 FIFTH AVENUE, SUITE 6100 SEATTLE, WA 98104-7043 PHONE: (206) 903-8800 FAX: (206) 903-8820 Case 2:17-mc-00145-RSL Document 1 Filed 11/15/17 Page 9 of 41 1 28 U.S.C. § 1391(b)(2) ........................................................................................................ 2 2 28 U.S.C. § 1651 ........................................................................................................ passim 3 4 5 Judiciary Act of 1789, 1 Stat. 73, § 14 (Sept. 24, 1789) ................................................... 25 OTHER AUTHORITIES U.S. Const. amend. I ................................................................................................... passim 6 7 8 Fed. R. Crim. P. 41 .................................................................................................... 5, 6, 30 LCR 3(e) .............................................................................................................................. 2 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 DORSEY & WHITNEY LLP PETITION TO UNSEAL ELECTRONIC SURVEILLANCE DOCKETS, APPLICATIONS, AND ORDERS - viii ________ COLUMBIA CENTER 701 FIFTH AVENUE, SUITE 6100 SEATTLE, WA 98104-7043 PHONE: (206) 903-8800 FAX: (206) 903-8820 Case 2:17-mc-00145-RSL Document 1 Filed 11/15/17 Page 10 of 41 I. 1 INTRODUCTION Index Newspapers LLC d/b/a The Stranger, a Seattle-based newspaper, respectfully 2 3 petitions the Court for an Order (1) unsealing certain judicial records in electronic surveillance 4 cases filed in the Western District of Washington and (2) changing the Court’s docketing practices 5 to allow public access to these types of records in future cases, consistent with the public’s 6 constitutional and common law rights of access to judicial proceedings and records. The judicial records sought by Petitioner authorize various forms of electronic surveillance 7 8 of individuals and compel service providers to assist with government surveillance and to disclose 9 user data and customer records. Petitioner cannot access these judicial records without the Court’s assistance because they 10 11 are maintained under seal and not publicly docketed in the Court’s Case Management/Electronic 12 Case Files (CM/ECF) system. In many instances, these judicial records are completely and 13 indefinitely hidden from public view, preventing the public from knowing how the Court is 14 interpreting and applying the law in electronic surveillance cases. Petitioner seeks access to these judicial records to better understand and inform the public 15 16 about how the government is using current laws to gain access to individuals’ private information, 17 including how often law enforcement officers seek and obtain orders from this Court allowing 18 access to such information. Going forward, publicly docketing electronic surveillance cases and unsealing the 19 20 applications, orders, and other judicial records in those cases, after there is no longer any need for 21 secrecy, will similarly further the public’s understanding of the law and the judicial process in 22 electronic surveillance cases, and serve the deep-seated American principle of open access to the 23 courts. 24 The legal and factual bases for Petitioner’s request are explained in detail below. 25 Additionally, this Petition is supported by the declarations of Steven J. Hsieh and Aaron D. DORSEY & WHITNEY LLP PETITION TO UNSEAL ELECTRONIC SURVEILLANCE DOCKETS, APPLICATIONS, AND ORDERS - 1 ________ COLUMBIA CENTER 701 FIFTH AVENUE, SUITE 6100 SEATTLE, WA 98104-7043 PHONE: (206) 903-8800 FAX: (206) 903-8820 Case 2:17-mc-00145-RSL Document 1 Filed 11/15/17 Page 11 of 41 1 Mackey, filed herewith. Petitioner respectfully requests that the Court issue an order providing the 2 specific relief identified in Section VI of this Petition and in the accompanying proposed order. II. 3 4 JURISDICTION AND VENUE The Court has jurisdiction over this Petition because “[e]very court has supervisory power 5 over its own records and files.” Nixon v. Warner Commc’ns, Inc., 435 U.S. 589, 598 (1978); accord 6 In re Motion for Release of Court Records, 526 F. Supp. 2d 484, 487 (FISA Ct. 2007) (footnote 7 omitted) (courts have “jurisdiction in the first instance to adjudicate a claim of right to [their] very 8 own records and files. . . . [T]his Court’s inherent power over its records supplies the authority to 9 consider a claim of legal right to release of those records”). Jurisdiction is also proper under 28 10 U.S.C. § 1331. 11 Venue within this District is proper under 28 U.S.C. § 1391(b)(2) because the actions or 12 omissions giving rise to the action occurred within this District, namely, the sealing of the specified 13 judicial records of this Court to which Petitioner requests access. 14 Petitioner seeks District-wide relief, namely public docketing and unsealing of the sealed 15 judicial records specified herein, wherever they may be within this District. Therefore, under LCR 16 3(e), assignment to any division is proper. Petitioner maintains its principal place of business in 17 Seattle and therefore requests assignment to the Seattle Division. III. 18 BACKGROUND 19 A. The Stranger 20 Petitioner Index Newspapers LLC d/b/a The Stranger is a Seattle-based Pulitzer Prize 21 winning newspaper that has been a voice in the community since 1991. Declaration of Steven J. 22 Hsieh (“Hsieh Decl.”) ¶¶ 1-3. The Stranger prides itself in covering important stories overlooked 23 by other publications in Seattle, and is known for its investigations that shake up the status quo 24 and lead to significant policy changes. Id. ¶ 3. One of The Stranger’s major reporting objectives is 25 to publish stories that contribute to the principles of transparency and open government. Id. ¶ 4. DORSEY & WHITNEY LLP PETITION TO UNSEAL ELECTRONIC SURVEILLANCE DOCKETS, APPLICATIONS, AND ORDERS - 2 ________ COLUMBIA CENTER 701 FIFTH AVENUE, SUITE 6100 SEATTLE, WA 98104-7043 PHONE: (206) 903-8800 FAX: (206) 903-8820 Case 2:17-mc-00145-RSL Document 1 Filed 11/15/17 Page 12 of 41 1 Law enforcement surveillance practices are of significant interest to The Stranger’s 2 journalists in their mission to inform citizens and ensure government transparency and 3 accountability. Id. ¶ 5. As part of The Stranger’s efforts to increase public knowledge and 4 awareness regarding the activities of local, state, and federal government, The Stranger has 5 published numerous articles reporting on law enforcement electronic surveillance activities. Id. ¶¶ 6 5-10. For example, in 2013, The Stranger was the first local media organization to thoroughly 7 report on the surveillance devices installed by the Seattle Police Department that were capable of 8 tracking people’s digital devices around the city. Id. ¶ 6. The Stranger was also the first to report 9 that the Seattle Police Department purchased software that allowed officers to monitor social 10 media users without informing city officials—a violation of local laws. Id. ¶ 7. 11 The Stranger seeks public docketing and unsealing of certain electronic surveillance 12 applications and orders filed in this District as part of its continuing efforts to report on and better 13 inform the public regarding law enforcement surveillance activities. The Stranger aims to bring 14 greater transparency to law enforcement’s electronic surveillance activities in this District. For 15 example, The Stranger wants to report the number of electronic surveillance orders sought and 16 obtained by law enforcement in this Court; which law enforcement agencies are seeking electronic 17 surveillance orders; the legal authorities cited to support such orders; the types of electronic 18 surveillance permitted; and the identities of companies compelled to provide technical assistance 19 for government surveillance and to disclose user data and customer records. Id. ¶¶ 11-13. 20 If the public cannot locate surveillance case dockets and records, it risks having an 21 incomplete and inaccurate understanding of the government’s electronic surveillance practices in 22 this District. The public docketing and unsealing of electronic surveillance cases as requested in 23 this Petition would enable The Stranger and other members of the public to search in CM/ECF for 24 these records, and to obtain a more complete understanding of surveillance practices in this 25 District, enabling the propriety of those practices to be discussed and debated. Id. ¶ 14. “Secrecy DORSEY & WHITNEY LLP PETITION TO UNSEAL ELECTRONIC SURVEILLANCE DOCKETS, APPLICATIONS, AND ORDERS - 3 ________ COLUMBIA CENTER 701 FIFTH AVENUE, SUITE 6100 SEATTLE, WA 98104-7043 PHONE: (206) 903-8800 FAX: (206) 903-8820 Case 2:17-mc-00145-RSL Document 1 Filed 11/15/17 Page 13 of 41 1 of judicial action can only breed ignorance and distrust of courts and suspicion concerning the 2 competence and impartiality of judges; free and robust reporting, criticism, and debate can 3 contribute to public understanding of the rule of law.” Nebraska Press Ass’n v. Stuart, 427 U.S. 4 539, 587 (1976) (Brennan, J., concurring). 5 Beginning in August 2017, The Stranger, through its counsel, met and conferred 6 telephonically and by email with the United States Attorney’s Office for the Western District of 7 Washington (“USAO”). In early September 2017, The Stranger’s counsel provided a draft of The 8 Stranger’s requested relief (proposed order) to the USAO. Counsel and the USAO discussed The 9 Stranger’s requested relief during teleconferences on September 15 and October 13, 2017. No 10 agreement was reached before the filing of this Petition. Declaration of Aaron D. Mackey 11 (“Mackey Decl.”) ¶ 16. 12 B. Legal Bases for Electronic Surveillance 13 Law enforcement can invoke a number of statutory authorities when seeking authorization 14 to conduct electronic surveillance or otherwise obtain personal information about individuals in 15 this District. These authorities include for example the Pen Register Act, 18 U.S.C. §§ 3121-3127, 16 the Stored Communications Act, 18 U.S.C. §§ 2701-2712, the Wiretap Act, 18 U.S.C. §§ 251017 2522, and the All Writs Act, 28 U.S.C. § 1651. These statutes allow law enforcement to obtain a 18 wide range of personal data, including the content of communications, geographic locations, lists 19 of websites visited, email addresses, phone numbers, and customer account records. 20 Petitioner seeks public docketing and unsealing of electronic surveillance applications and 21 orders relating to each of these statutory authorities, which are described in further detail below. 22 23 1. The Pen Register Act Title III of the Electronic Communications Privacy Act of 1986 (“ECPA”), 18 U.S.C. §§ 24 3121-3127, is known as the Pen Register Act (“PRA”). The PRA establishes rules governing 25 telephone companies’ and Internet service providers’ compelled collection and disclosure of users’ DORSEY & WHITNEY LLP PETITION TO UNSEAL ELECTRONIC SURVEILLANCE DOCKETS, APPLICATIONS, AND ORDERS - 4 ________ COLUMBIA CENTER 701 FIFTH AVENUE, SUITE 6100 SEATTLE, WA 98104-7043 PHONE: (206) 903-8800 FAX: (206) 903-8820 Case 2:17-mc-00145-RSL Document 1 Filed 11/15/17 Page 14 of 41 1 dialing, routing, signaling, and addressing information to law enforcement. 2 Pen register and/or trap and trace (“PR/TT”) devices record routing information, such as 3 telephone numbers, and e-mail addresses transmitted by wire or electronic communications 4 carriers. 18 U.S.C. § 3127. A court “shall enter” an order authorizing the installation and use of a 5 PR/TT device if it “finds that the attorney for the Government has certified to the court that the 6 information likely to be obtained by such installation and use is relevant to an ongoing criminal 7 investigation,” 18 U.S.C. § 3123(a)(1), a showing lower than the “probable cause” standard 8 required to obtain a search warrant under Federal Rule of Criminal Procedure 41. 9 A court order authorizing the installation and use of a PR/TT device must direct that the 10 order be sealed until further order of the court. 18 U.S.C. § 3123(d). Though the PRA contemplates 11 unsealing of PR/TT applications and orders when “ordered by the court,” id., unsealing is in 12 practice uncommon. As a result, judicial records regarding PR/TT devices, including basic docket 13 information, are typically shielded from public scrutiny indefinitely. 14 Law enforcement uses PR/TT devices to collect information about the communications of 15 thousands of individuals each year. A U.S. Department of Justice report on the use of PR/TT 16 devices by four federal law enforcement agencies showed that in 2011, 43,576 people were 17 affected by those agencies’ use of pen registers and 46,565 people were affected by their use of 18 trap and trace devices on telephone facilities; 837 pen registers and 824 trap and trace devices were 19 authorized for use on e-mail and/or Internet networks. See Mackey Decl., Ex. A. These numbers 20 reflect only PR/TT devices judicially authorized for use by the four agencies included in the report. 21 From 2008 through 2016, in a single district, the District of Columbia, the USAO alone filed 2,248 22 applications for judicial authorization to use a PR/TT device—approximately 250 applications per 23 year. See Mackey Decl., Exs. B-D. 24 25 2. The Stored Communications Act Title II of ECPA, 18 U.S.C. §§ 3121-3127, is known as the Stored Communications Act DORSEY & WHITNEY LLP PETITION TO UNSEAL ELECTRONIC SURVEILLANCE DOCKETS, APPLICATIONS, AND ORDERS - 5 ________ COLUMBIA CENTER 701 FIFTH AVENUE, SUITE 6100 SEATTLE, WA 98104-7043 PHONE: (206) 903-8800 FAX: (206) 903-8820 Case 2:17-mc-00145-RSL Document 1 Filed 11/15/17 Page 15 of 41 1 (“SCA”). The SCA provides government entities with mechanisms to compel third-party 2 electronic communication service or remote computing service providers to disclose the contents 3 of stored wire and electronic communications, as well as records and other information pertaining 4 to subscribers. The mechanisms available under the SCA include Section 2703(d) orders, see 18 5 U.S.C. § 2703(d), and search warrants, see 18 U.S.C. § 2703(a), (b)(1)(A), and (c)(1)(A). 6 Like PR/TT orders, Section 2703(d) orders may be issued on a showing lower than that 7 required to obtain a warrant under Fed. R. Crim. P. 41: The government seeking a Section 2703(d) 8 order must “offer[] specific and articulable facts showing that there are reasonable grounds to 9 believe that the contents of a wire or electronic communication, or the records or other information 10 sought, are relevant and material to an ongoing criminal investigation.” 18 U.S.C. § 2703(d). 11 Search warrants issued under the SCA must be “issued using the procedures described in 12 the Federal Rules of Criminal Procedure (or, in the case of a State court, issued using State warrant 13 procedures).” 18 U.S.C. § 2703(a), (b)(1)(A), and (c)(1)(A). 14 Although the SCA does not require sealing of warrants or orders issued under its 15 provisions, such records are frequently sealed and kept under seal indefinitely. As a result, the 16 public lacks information as to the number of SCA search warrants and Section 2703(d) orders 17 issued by district courts in any given time period. However, there is reason to believe those 18 numbers are high. Google, Inc. reported that during the first six months of 2017, it received 5,201 19 search warrant requests, 9,320 subpoena requests, and 1,533 “other court order” requests from the 20 U.S. government. See Mackey Decl., Ex. E. Microsoft Corporation reported that during the first 21 six months of 2017, it received 5,401 U.S. law enforcement requests for customer data from 12,936 22 accounts/users. See Mackey Decl., Ex. F. 23 Information released by the U.S. District Court for the District of Columbia indicates that 24 the number of applications for Section 2703(d) orders filed in that District averaged around 100 25 per year from 2008 to 2013, and then increased rapidly, with 1,136 such applications filed in 2016. DORSEY & WHITNEY LLP PETITION TO UNSEAL ELECTRONIC SURVEILLANCE DOCKETS, APPLICATIONS, AND ORDERS - 6 ________ COLUMBIA CENTER 701 FIFTH AVENUE, SUITE 6100 SEATTLE, WA 98104-7043 PHONE: (206) 903-8800 FAX: (206) 903-8820 Case 2:17-mc-00145-RSL Document 1 Filed 11/15/17 Page 16 of 41 1 See Mackey Decl., Ex. G. Writing about the ECPA dockets of federal district courts, Magistrate 2 Judge Stephen W. Smith noted that “the number of ECPA cases filed in a single year surpasses the 3 entire output of the FISA court since its creation in 1978,” and, in one sample year (2006), “federal 4 magistrate judges were presented with over 30,000 secret ECPA applications.” Mackey Decl., Ex. 5 H at 315 & 322. 6 In October 2017, the Department of Justice (DOJ) issued a new policy regarding protective 7 orders under § 2705(b) of the SCA. See Mackey Decl., Ex. I. The new DOJ policy ends the routine 8 imposition of nondisclosure orders of indefinite duration barring service providers like Google and 9 Microsoft from notifying their customers that their email or other records have been turned over 10 in response to legal demands by the government under the SCA. The new DOJ policy provides 11 that “[b]arring exceptional circumstances, prosecutors filing § 2705(b) applications may only seek 12 to delay notice for one year or less.” Id. at 2. 13 Nothing in the new DOJ policy, however, requires prosecutors to request that courts 14 publicly docket and unseal the applications, orders, and other documents filed in SCA cases, even 15 after one year has passed. Thus, these judicial records remain indefinitely sealed and inaccessible 16 to Petitioner and the public at large in this District. 17 18 3. The Wiretap Act Title I of ECPA, 18 U.S.C. §§ 2510-2522, amended the Wiretap Act to permit interception 19 of electronic communications. The Wiretap Act enables law enforcement to obtain, among other 20 things, an order requiring third parties to provide technical assistance to law enforcement to 21 intercept wire, oral, or electronic communications or to conduct electronic surveillance. 18 U.S.C. 22 § 2511(2)(a)(ii). No time limit for sealing is stated in the Wiretap Act. 23 Judicial interpretation of the technical-assistance provisions of the Wiretap Act may be 24 enabling surveillance of oral communications via smart TVs and other home consumer products. 25 In a 2003 decision, the Ninth Circuit reviewed a district court decision to issue several ex parte DORSEY & WHITNEY LLP PETITION TO UNSEAL ELECTRONIC SURVEILLANCE DOCKETS, APPLICATIONS, AND ORDERS - 7 ________ COLUMBIA CENTER 701 FIFTH AVENUE, SUITE 6100 SEATTLE, WA 98104-7043 PHONE: (206) 903-8800 FAX: (206) 903-8820 Case 2:17-mc-00145-RSL Document 1 Filed 11/15/17 Page 17 of 41 1 orders under the Wiretap Act, requiring an unnamed company to assist in intercepting 2 conversations occurring in a vehicle equipped with an on-board system that listened to occupants’ 3 voice commands and gave directions and other assistance according to request. The district court 4 granted a government technical-assistance application to force the unnamed company to 5 surreptitiously turn on the microphone in the automobile’s communication system. Though the 6 Federal Bureau of Investigation had a court-issued warrant to conduct a wiretap, the Ninth Circuit 7 ultimately reversed the district court for a fact-specific reason. The Court held that the technical 8 assistance demanded was not authorized by the Wiretap Act because it would disable the service 9 entirely. In re U.S. for an Order Authorizing Roving Interception of Oral Commc'ns, 349 F.3d 10 1132, 1144-46 (9th Cir. 2003). 11 Today, the public does not know whether law enforcement has sought to use the Wiretap 12 Act’s technical-assistance provisions to turn home appliances into eavesdropping equipment, for 13 example, by requiring manufacturers to turn on the microphones in televisions and smart speakers. 14 See Mackey Decl., Ex. J at 13-15. 15 16 4. The All Writs Act The All Writs Act (“AWA”) authorizes federal courts to “issue all writs necessary or 17 appropriate in aid of their respective jurisdictions and agreeable to the usages and principles of 18 law.” 28 U.S.C. § 1651(a). 19 In recent years, the government has sought orders under the AWA compelling smartphone 20 companies to circumvent the encryption on their devices. For example, in October 2014, a 21 magistrate judge in the Southern District of New York issued an order under the AWA compelling 22 an unnamed cellphone manufacturer to bypass the lock screen on—and extract intelligible data 23 from—an encrypted phone for which law enforcement had a search warrant. In re Order Requiring 24 XXX, Inc., No. 14-mj-2258, 2014 U.S. Dist. LEXIS 154743 (S.D.N.Y. Oct. 31, 2014). 25 In 2015, another magistrate judge in the Eastern District of New York unsealed a similar DORSEY & WHITNEY LLP PETITION TO UNSEAL ELECTRONIC SURVEILLANCE DOCKETS, APPLICATIONS, AND ORDERS - 8 ________ COLUMBIA CENTER 701 FIFTH AVENUE, SUITE 6100 SEATTLE, WA 98104-7043 PHONE: (206) 903-8800 FAX: (206) 903-8820 Case 2:17-mc-00145-RSL Document 1 Filed 11/15/17 Page 18 of 41 1 AWA application (which he ultimately denied), this time directed at iPhone manufacturer Apple. 2 In re Order Requiring Apple, Inc. to Assist in the Execution of a Search Warrant Issued By this 3 Court, 149 F. Supp. 3d 341 (E.D.N.Y. 2016) (denying AWA application). During that case, the 4 public learned that courts have granted at least 70 other government applications for AWA orders 5 compelling manufacturers to bypass smartphone passcodes in sealed proceedings. See Mackey 6 Decl., Ex. K. 7 In 2016, a magistrate judge in the Central District of California issued an AWA order 8 compelling Apple to write new software code to allow law enforcement to “brute force” guess the 9 password protecting an encrypted iPhone used by one of the San Bernardino terrorists. In the 10 Matter of the Search of an Apple iPhone Seized During the Execution of a Search Warrant on a 11 Black Lexus IS300, California License Plate 5KGD203, No. 15-mj-0451, 2016 U.S. Dist. LEXIS 12 20543 (C.D. Cal. Feb. 16, 2016). Although the FBI dropped the matter after accessing the phone’s 13 data by other means, that case sparked discussion of whether compelling such access is within the 14 courts’ authority. See Mackey Decl., Ex. L. 15 C. Docketing Practices for Electronic Surveillance Cases in This District 16 Beginning in July 2017, Petitioner communicated with the Chief Deputy Clerk for the 17 Western District of Washington to learn more about how applications for electronic surveillance 18 orders and search warrants are handled in this District, including the extent to which court records 19 relating to such requests are publicly accessible. Hsieh Decl. ¶ 15. Based on those communications, 20 Petitioner developed the following understanding regarding docketing practices for electronic 21 surveillance cases in this District. 22 When a new case is filed in this District, the case is docketed in the Court’s CM/ECF 23 system and assigned a case number and a case type designation, such as Criminal (CR), Civil (CV), 24 Magistrate Judge (MJ), Grand Jury (GJ), or Miscellaneous (MC). Id. ¶¶ 16-17. Applications 25 seeking a search warrant or a non-warrant order for electronic surveillance are filed manually (i.e., DORSEY & WHITNEY LLP PETITION TO UNSEAL ELECTRONIC SURVEILLANCE DOCKETS, APPLICATIONS, AND ORDERS - 9 ________ COLUMBIA CENTER 701 FIFTH AVENUE, SUITE 6100 SEATTLE, WA 98104-7043 PHONE: (206) 903-8800 FAX: (206) 903-8820 Case 2:17-mc-00145-RSL Document 1 Filed 11/15/17 Page 19 of 41 1 in paper) and later scanned by the Court into its CM/ECF system. Id. ¶ 18. This procedure applies 2 to all of the types of electronic surveillance cases addressed in this Petition. Id. 3 This Court uses the Magistrate Judge (MJ) case type designation for cases seeking a search 4 warrant for electronic surveillance and the Grand Jury (GJ) case type designation for cases seeking 5 a non-warrant order for electronic surveillance. Id. ¶¶ 19-20. The Court uses the Grand Jury (GJ) 6 case type designation for non-warrant surveillance cases—even though they are not connected 7 with any grand jury proceedings—as a way to prevent those cases from becoming inadvertently 8 unsealed, since cases having the Grand Jury (GJ) case type designation cannot be unsealed in the 9 Court’s CM/ECF system. Id. ¶ 20. 10 In cases seeking a search warrant or a non-warrant order for electronic surveillance, all 11 documents are filed under seal, and the docket sheet and all documents remain under seal unless 12 the Court orders otherwise. When such a case is sealed, even the existence of the case (e.g., the 13 case number) is not publicly disclosed and not publicly discoverable, either electronically through 14 the Court’s Public Access to Court Electronic Records (PACER) service or in person by visiting 15 the Clerk’s office at the Court. Id. ¶ 21. 16 Under this Court’s current docketing practices, which Petitioner understands have been in 17 effect since at least 2010, the public has no way to access even basic docket sheet information 18 regarding non-warrant electronic surveillance cases, much less the applications, orders, and other 19 documents filed in these cases assigned the Grand Jury (GJ) case type designation. These cases 20 remain sealed indefinitely. The very existence of individual non-warrant electronic surveillance 21 cases in this District is kept secret from the public and, at present, there is no way Petitioner can 22 make a particularized request to unseal information in specific cases. Id. ¶ 22. 23 Unlike the non-warrant cases described above, cases involving search warrants for 24 electronic surveillance are sometimes unsealed, for example, after an executed search warrant has 25 been returned to the Court. Petitioner understands that the Court sends periodic reports to the DORSEY & WHITNEY LLP PETITION TO UNSEAL ELECTRONIC SURVEILLANCE DOCKETS, APPLICATIONS, AND ORDERS - 10 ________ COLUMBIA CENTER 701 FIFTH AVENUE, SUITE 6100 SEATTLE, WA 98104-7043 PHONE: (206) 903-8800 FAX: (206) 903-8820 Case 2:17-mc-00145-RSL Document 1 Filed 11/15/17 Page 20 of 41 1 USAO identifying cases in which an executed search warrant has not been returned, and that the 2 USAO responds to those reports by filing a motion requesting that the warrant-related materials 3 either remain sealed or be unsealed. Id. ¶ 23. Petitioner does not know what portion of cases in this 4 District involving a search warrant for electronic surveillance have been unsealed. Nor does 5 Petitioner know how long on average it takes for such cases to be unsealed in this District, although 6 on information and belief it can take years for search warrant materials to be unsealed. After a 7 search warrant case has been unsealed, the public can access the case docket sheet and the unsealed 8 materials electronically through PACER. Id. 9 10 D. Petitions Seeking To Unseal Surveillance Cases in Other Districts In the District of Columbia, journalist Jason Leopold and the Reporters Committee for 11 Freedom of the Press petitioned the court seeking increased public access to judicial records in 12 cases involving electronic surveillance under the Pen Register Act and the Stored Communications 13 Act. See In the Matter of the Application of Jason Leopold to Unseal Certain Electronic 14 Surveillance Applications and Orders, No. 13-mc-00712-BAH (D.D.C.) (“Leopold”). 15 A recent filing in Leopold details efforts by the district court, its clerk’s office, the DOJ, 16 and the petitioners to unseal applications and orders in certain electronic surveillance cases. See 17 Mackey Decl., Ex. M. To date, the Leopold petition has resulted in the release of lists identifying 18 PR/TT applications filed by the United States Attorney’s Office for the District of Columbia 19 between 2008 and 2016 (approximately 700 pages), the approximate number of matters filed under 20 section 2703(d) of the SCA, extraction charts for the PR/TT applications (approximately 50 pages), 21 and total or partial unsealing of PR/TT matters where the application was denied or a substantive 22 opinion issued. See id. at 2-3. As for prospective relief, the D.D.C. Clerk’s Office will now permit 23 electronic filing and public reporting of caption information in certain surveillance cases. Id. at 3. 24 The Leopold case is still pending, but already the government has acknowledged that “[b]y filing 25 this lawsuit, petitioners have been instrumental in prompting a sea change in how the Court and DORSEY & WHITNEY LLP PETITION TO UNSEAL ELECTRONIC SURVEILLANCE DOCKETS, APPLICATIONS, AND ORDERS - 11 ________ COLUMBIA CENTER 701 FIFTH AVENUE, SUITE 6100 SEATTLE, WA 98104-7043 PHONE: (206) 903-8800 FAX: (206) 903-8820 Case 2:17-mc-00145-RSL Document 1 Filed 11/15/17 Page 21 of 41 1 the USAO-DC handle the filing of sealed matters under the Pen Register Statute and the SCA.” 2 Id. at 42. 3 In the Northern District of California, researchers Jennifer Granick and Riana Pfefferkorn 4 petitioned the court seeking the public docketing and unsealing of judicial records in that District 5 involving electronic surveillance under the Pen Register Act, the Stored Communications Act, the 6 Wiretap Act, and the All Writs Act. See In re Petition of Jennifer Granick and Riana Pfefferkorn 7 to Unseal Technical-Assistance Orders and Materials, No. 16-mc-80206-KAW (N.D. Cal.). The 8 case is still pending. A Joint Status Report was filed on August 22, 2017, see Mackey Decl., Ex. 9 N, and a status conference is scheduled for December 7, 2017. 10 11 IV. LEGAL STANDARDS The United States “has a long history of distrust for secret proceedings,” which “are the 12 exception rather than the rule in our courts.” United States v. Index Newspapers LLC, 766 F.3d 13 1072, 1084 (9th Cir. 2014) (citations omitted). The documents Petitioner requests the Court unseal 14 are subject to qualified rights of access to judicial proceedings under both the First Amendment 15 and under the common law. Press-Enter. II, 478 U.S. at 8-9 (First Amendment); Nixon, 435 U.S. 16 at 597 (footnotes omitted) (common law). 17 Petitioner has standing to unseal judicial records. “Members of the public have standing to 18 move to unseal criminal proceedings.” United States v. Ring, 47 F. Supp. 3d 38, 41 (D.D.C. 2014) 19 (citing Press-Enter. Co. v. Superior Court, 478 U.S. 1 (1986) (Press-Enterprise II)). The sealing 20 of the requested materials constitutes “an injury [to Petitioner] that is likely to be redressed by a 21 favorable decision” to unseal those materials. In re Wash. Post, 807 F.2d 383, 388 n.4 (4th Cir. 22 1986) (internal quotation marks and alteration omitted); see also Lujan v. Defenders of Wildlife, 23 504 U.S. 555, 560-61 (1992). Petitioner has sufficiently alleged (1) an injury to its right to access 24 the court documents it seeks, that is (2) fairly traceable to the Court’s sealing of those documents, 25 and is (3) likely to be redressed by a Court decision to unseal them and change its docketing DORSEY & WHITNEY LLP PETITION TO UNSEAL ELECTRONIC SURVEILLANCE DOCKETS, APPLICATIONS, AND ORDERS - 12 ________ COLUMBIA CENTER 701 FIFTH AVENUE, SUITE 6100 SEATTLE, WA 98104-7043 PHONE: (206) 903-8800 FAX: (206) 903-8820 Case 2:17-mc-00145-RSL Document 1 Filed 11/15/17 Page 22 of 41 1 practices going forward. 2 A. The First Amendment Right of Access to Judicial Records and Proceedings 3 The First Amendment establishes a presumptive right of access to the Court’s proceedings 4 and records. Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555, 580-81 (1980); Associated 5 Press v. U.S. Dist. Court, 705 F.2d 1143, 1145 (9th Cir. 1983) (pre-trial documents); In re Special 6 Proceedings, 842 F. Supp. 2d 232, 239 (D.D.C. 2012) (collecting cases); Oregonian Publ’g Co. v. 7 U.S. Dist. Court, 920 F.2d 1462, 1465 (9th Cir. 1990) (citing Press-Enter. Co. v. Superior Court, 8 464 U.S. 501, 510 (1984) (Press-Enterprise I)). This right of access “ensure[s] that th[e] 9 constitutionally protected ‘discussion of governmental affairs’ is an informed one.” Globe 10 Newspaper Co. v. Superior Court, 456 U.S. 596, 604-05 (1982) (quotation omitted). The right is 11 based on the history of open criminal trials in the American and English legal systems and on 12 policy grounds including the potential for public scrutiny to “enhance[] the quality and safeguard[] 13 the integrity of the factfinding process,” the “appearance of fairness,” and the opportunity for “the 14 public to participate in and serve as a check upon the judicial process.” Id. at 605-06 (footnotes 15 omitted). As Chief Justice Burger famously wrote: “People in an open society do not demand 16 infallibility from their institutions, but it is difficult for them to accept what they are prohibited 17 from observing.” Richmond Newspapers, 448 U.S. at 572. 18 Courts employ a two-part inquiry, commonly called the experience and logic test, to 19 determine whether the First Amendment right of access applies to particular judicial proceedings 20 or records. Press-Enter. II, 478 U.S. at 8-9; Times Mirror Co. v. United States, 873 F.2d 1210, 21 1213 n.4 (9th Cir. 1989) (applying the same test to the disclosure of “documents generated as part 22 of a judicial proceeding”). First, courts ask, “whether the place and process have historically been 23 open to the press and general public.” Press-Enter. II, 478 U.S. at 8-9 (citation omitted). Second, 24 courts ask, “whether public access plays a significant positive role in the functioning of the 25 particular process in question.” Id. Importantly, in the Ninth Circuit, “logic alone, even without DORSEY & WHITNEY LLP PETITION TO UNSEAL ELECTRONIC SURVEILLANCE DOCKETS, APPLICATIONS, AND ORDERS - 13 ________ COLUMBIA CENTER 701 FIFTH AVENUE, SUITE 6100 SEATTLE, WA 98104-7043 PHONE: (206) 903-8800 FAX: (206) 903-8820 Case 2:17-mc-00145-RSL Document 1 Filed 11/15/17 Page 23 of 41 1 experience, may be enough to establish the right” of access. In re Copley Press, Inc., 518 F.3d 2 1022, 1026 (9th Cir. 2008) (citations omitted). 3 The public’s presumptive First Amendment right of access to judicial proceedings and 4 records can only be overcome by proof that limiting access satisfies a “compelling governmental 5 interest” and that the restrictions are “narrowly tailored to serve that interest,” Globe Newspaper, 6 457 U.S. at 606-07. The party seeking to override the public’s right of access must show a 7 “substantial probability” of harm if such restrictions are not present; even a “reasonable likelihood” 8 of harm is insufficient under the First Amendment. Press-Enter. II, 478 U.S. at 14. 9 Further, any judicial decision to restrict the public’s right of access must be “based on 10 [specific] findings that closure is essential to preserve higher values.” Press-Enter. I, 464 U.S. at 11 510; Oregonian Publ’g Co., 920 F.2d at 1465. 12 B. The Common Law Right of Access to Judicial Records 13 The common law right of access similarly presumes that a broad range of judicial records 14 must be public. Only “a narrow range of documents” is exempt from the common-law right of 15 public access, Kamakana v. City & Cty. of Honolulu, 447 F.3d 1172, 1178 (9th Cir. 2006), namely, 16 those which have “traditionally been kept secret for important policy reasons.” Times Mirror Co., 17 873 F.2d at 1219. 18 The Ninth Circuit has held there is a common law right of access to judicial records. Ctr. 19 for Auto Safety v. Chrysler Group, LLC, 809 F.3d 1092, 1102 (9th Cir. 2016). This access promotes 20 the “public interest in understanding the judicial process itself and the bases or explanations for a 21 court’s decision.” Id. (internal citations omitted). A strong presumption of access applies to any 22 court document that is “strongly correlative to the merits of a case.” Id. at 1099; see also United 23 States v. El-Sayegh, 131 F.3d 158, 163 (D.C. Cir. 1997) (“[W]hat makes a document a judicial 24 record and subjects it to the common law right of access is the role it plays in the adjudicatory 25 process.”). For example, documents are judicial records if “the district court ma[kes] any decisions DORSEY & WHITNEY LLP PETITION TO UNSEAL ELECTRONIC SURVEILLANCE DOCKETS, APPLICATIONS, AND ORDERS - 14 ________ COLUMBIA CENTER 701 FIFTH AVENUE, SUITE 6100 SEATTLE, WA 98104-7043 PHONE: (206) 903-8800 FAX: (206) 903-8820 Case 2:17-mc-00145-RSL Document 1 Filed 11/15/17 Page 24 of 41 1 about the [documents] or [ ] otherwise relie[s] on them.” Dhiab v. Trump, 852 F.3d 1087, 1103 2 (D.C. Cir. 2017) (internal quotations, citation, and alterations omitted). Judicial orders and the 3 documents underlying them are indisputably judicial records. EEOC v. Nat’l Children’s Ctr., Inc., 4 98 F.3d 1406, 1409 (D.C. Cir. 1996) (“A court’s decrees, its judgments, its orders, are the 5 quintessential business of the public’s institutions.”); see also Wash. Legal Found. v. United States 6 Sentencing Comm’n, 89 F.3d 897, 905 (D.C. Cir. 1996). 7 “When the common law right of access applies to the type of document at issue in a 8 particular case, ‘a “strong presumption in favor of access” is the starting point.’” United States v. 9 Bus. of Custer Battlefield Museum and Store, 658 F.3d 1188, 1194 (9th Cir. 2011) (quoting 10 Kamakana, 447 F.3d at 1178; further citation omitted). A party seeking to seal a judicial record 11 must overcome this strong presumption by articulating compelling reasons for sealing that 12 outweigh the general history of access and the public policies favoring disclosure. The court must 13 “conscientiously balance[] the competing interests” of the public and of the party who seeks to 14 keep certain judicial records secret. Foltz v. State Farm Mut. Auto. Ins. Co., 331 F.3d 1122, 1135 15 (9th Cir. 2003). If the court decides to seal certain judicial records, it must “base its decision on a 16 compelling reason and articulate the factual basis for its ruling, without relying on hypothesis or 17 conjecture.” Hagestad v. Tragesser, 49 F.3d 1430, 1434 (9th Cir. 1995) (citation omitted). V. 18 19 20 21 A. ARGUMENT Petitioner Has a Right to Access Basic Docketing Information Regarding Electronic Surveillance Cases in This District Petitioner has both constitutional and common law rights to access basic docketing 22 information regarding cases filed in this Court. Under the Court’s current docketing practices, 23 however, even basic docket sheet information regarding electronic surveillance cases (e.g., the 24 case number) is sealed such that these cases are completely hidden from public view—in many 25 instances indefinitely. DORSEY & WHITNEY LLP PETITION TO UNSEAL ELECTRONIC SURVEILLANCE DOCKETS, APPLICATIONS, AND ORDERS - 15 ________ COLUMBIA CENTER 701 FIFTH AVENUE, SUITE 6100 SEATTLE, WA 98104-7043 PHONE: (206) 903-8800 FAX: (206) 903-8820 Case 2:17-mc-00145-RSL Document 1 Filed 11/15/17 Page 25 of 41 1 Operating a secret docket for certain surveillance cases while also maintaining a public 2 docket for other criminal proceedings is “facially unconstitutional.” United States v. Ochoa3 Vasquez, 428 F.3d 1015, 1029 (11th Cir. 2005) (citing United States v. Valenti, 987 F.2d 708, 715 4 (11th Cir. 1993)). It “violates the public and press’s First Amendment right of access to criminal 5 proceedings.” Co. Doe v. Public Citizen, 749 F.3d 246, 268 (4th Cir. 2014) (citing Valenti, 987 6 F.2d at 715). 7 A secret docketing system “can effectively preclude the public and the press from seeking 8 to exercise their constitutional right of access” to court records. Valenti, 987 F.2d at 715. In short, 9 a “district court . . . cannot employ . . . secret docketing procedures.” Ochoa-Vasquez, 428 F.3d at 10 1030. See generally In re Sealed Case, 199 F.3d 522, 525 (D.C. Cir. 2000) (collecting federal 11 appeals court cases requiring public docketing in judicial proceedings other than grand jury 12 matters); Media Gen. Operations, Inc. v. Buchanan, 417 F.3d 424, 437 (4th Cir. 2005) (court clerk 13 must maintain a public docket of search warrant proceedings, once warrant has been returned). 14 The Court’s current practice of docketing non-warrant electronic surveillance cases as 15 Grand Jury (GJ) cases violates Petitioner’s constitutional and common law rights of access to 16 judicial proceedings and records in those cases. When the Court dockets non-warrant surveillance 17 cases as Grand Jury (GJ) cases, they are indefinitely sealed and inaccessible to the public. See 18 Hsieh Decl. ¶¶ 19-21. Because there is no public docket for these non-warrant surveillance cases, 19 there is no public record for when and how often law enforcement seeks them. Id. Further, because 20 there is no public docket indicating these records exist, the press and the public have no ability to 21 monitor and make particularized requests to unseal information in specific cases. Id. 22 The First Amendment right of access requires this Court’s non-warrant surveillance 23 dockets be made public because such secrecy runs counter to both experience and logic. 24 First, the United States has a “centuries-long history of public access to dockets.” United 25 States v. Mendoza, 698 F.3d 1303, 1304 (10th Cir. 2012). This historic tradition counsels for DORSEY & WHITNEY LLP PETITION TO UNSEAL ELECTRONIC SURVEILLANCE DOCKETS, APPLICATIONS, AND ORDERS - 16 ________ COLUMBIA CENTER 701 FIFTH AVENUE, SUITE 6100 SEATTLE, WA 98104-7043 PHONE: (206) 903-8800 FAX: (206) 903-8820 Case 2:17-mc-00145-RSL Document 1 Filed 11/15/17 Page 26 of 41 1 granting Petitioner access to the requested docket sheets. 2 Second, logic also supports unsealing the docket sheet information sought here. Public 3 docket sheets play a key role in the public’s relationship with the courts. The docket sheet notifies 4 the public of the existence of a matter, and of activity in a matter. Ochoa-Vasquez, 428 F.3d at 5 1029 n.15 (citation omitted). Docket sheets provide an index to judicial proceedings and 6 documents, and endow the public and press with the capacity to exercise their rights of access 7 guaranteed by the First Amendment. Hartford Courant Co. v. Pellegrino, 380 F.3d 83, 93 (2d Cir. 8 2004). Sealed docket sheets frustrate the ability of the public to oversee the judicial process. 9 Pellegrino, 380 F.3d at 94. Secrecy erodes the legitimacy of the institution of the courts: 10 Maintaining “a two-tier system, open and closed,” threatens public “[c]onfidence in the accuracy 11 of [the court’s] records …, … the authority of its rulings and the respect due its judgments.” CBS, 12 Inc. v. U.S. Dist. Ct., 765 F.2d 823, 826 (9th Cir. 1985) (Kennedy, J.). 13 Further, because courts have historically made their dockets publicly available, the 14 common law right of access applies and requires disclosure of the docket sheet information 15 requested by Petitioner. See In re Application of N.Y. Times Co. for Access to Certain Sealed Court 16 Records, 585 F. Supp. 2d 83, 88-89 (D.D.C. 2008) (“[T]here is an historic common law right of 17 access to judicial records and documents that has been recognized in United States courts for well 18 over a century”); In re Sealing & Non-Disclosure, 562 F. Supp. 2d 876, 895 (S.D. Tex. 2008) (“It 19 is difficult to conceive any circumstance under which permanent sealing of the entire file, 20 including the order itself, could ever be justified.”). 21 “[M]aking court files accessible” is particularly appropriate where, as here, the government 22 is a party to the matter: “in such circumstances, the public’s right to know what the executive 23 branch is about coalesces with the concomitant right of the citizenry to appraise the judicial 24 branch.” Fed. Trade Comm’n v. Standard Fin. Mgmt. Corp., 830 F.2d 404, 410 (1st Cir. 1987) 25 (FTC); see also Doe, 749 F.3d at 271 (“[T]he public has a strong interest in monitoring not only DORSEY & WHITNEY LLP PETITION TO UNSEAL ELECTRONIC SURVEILLANCE DOCKETS, APPLICATIONS, AND ORDERS - 17 ________ COLUMBIA CENTER 701 FIFTH AVENUE, SUITE 6100 SEATTLE, WA 98104-7043 PHONE: (206) 903-8800 FAX: (206) 903-8820 Case 2:17-mc-00145-RSL Document 1 Filed 11/15/17 Page 27 of 41 1 functions of the courts but also the positions that its elected officials and government agencies take 2 in litigation” (citing FTC)). 3 While keeping certain information regarding electronic surveillance proceedings secret 4 during the pendency of an investigation can make sense, eventually those matters must be publicly 5 docketed, to provide notice and “an opportunity … to voice objections to the denial of access.” 6 Baltimore Sun Co. v. Goetz, 886 F.2d 60, 65 (4th Cir. 1989). This is the minimum level of 7 transparency necessary to ensure electronic surveillance decisions are both known and accountable 8 to the public and to other judges. There is no compelling countervailing reason that prevents 9 unsealing docket sheets for investigations that have concluded. See In re State-Record Co., Inc., 10 917 F.2d 124, 129 (4th Cir. 1990) (“we can not understand how the docket entry sheet could be 11 prejudicial”). 12 Moreover, even during the pendency of an investigation, when there may be compelling 13 reasons to maintain certain information under seal, there is no compelling reason why the public 14 should not know of the existence of an electronic surveillance request, along with certain basic 15 categories of information regarding the request, such as: (1) law enforcement agency filing the 16 application; (2) jurisdictional authority (e.g., PRA, SCA, Wiretap Act, AWA); (3) relief sought 17 (e.g., search warrant, seizure warrant, wire interception, pen register, trap and trace, tracking 18 device, prospective cell site data, historical cell site data, toll records, email contents, customer 19 account records); and (4) recipient of order/warrant (e.g., identity of phone company, ISP). See 20 Mackey Decl., Ex. H at 335. Such basic docket information need not include information such as 21 telephone numbers or email addresses that could be used to identify particular suspects or 22 investigative targets. 23 As noted above, at least one other district court has agreed to change its docketing 24 procedures to provide for the electronic filing and public reporting of caption information in certain 25 surveillance cases. See Mackey Decl., Ex. M at 3. DORSEY & WHITNEY LLP PETITION TO UNSEAL ELECTRONIC SURVEILLANCE DOCKETS, APPLICATIONS, AND ORDERS - 18 ________ COLUMBIA CENTER 701 FIFTH AVENUE, SUITE 6100 SEATTLE, WA 98104-7043 PHONE: (206) 903-8800 FAX: (206) 903-8820 Case 2:17-mc-00145-RSL Document 1 Filed 11/15/17 Page 28 of 41 1 Petitioner respectfully requests the Court to publicly docket electronic surveillance cases 2 filed in this District and to unseal and require public disclosure of basic docketing information 3 regarding those cases, as detailed in Section VI, infra, and in the accompanying proposed order. 4 5 6 B. Petitioner Has a Right to Access Electronic Surveillance Applications and Orders Filed in This District, Once Secrecy is No Longer Necessary Petitioner also has constitutional and common law rights to access the underlying 7 electronic surveillance applications, orders, and related materials filed in this Court, when secrecy 8 is no longer necessary and privacy interests can be addressed via redaction. More specifically, as 9 detailed in Section VI, infra, Petitioner seeks access to applications and supporting documents, 10 including affidavits, and orders granting or denying said applications in certain electronic 11 surveillance cases filed under the Pen Register Act, the Stored Communications Act, the Wiretap 12 Act, and the All Writs Act. 13 Courts consistently hold that a right of access attaches to search warrant materials once 14 secrecy is no longer justified. See In re Search Warrant for Secretarial Area Outside Office of 15 Gunn, 855 F.2d 569, 573 (8th Cir. 1988) (holding there is a qualified First Amendment right to 16 inspect search warrants once the warrant is executed); In re Application and Affidavit for a Search 17 Warrant, 923 F.2d 324, 331 (4th Cir. 1991) (affirming order unsealing search warrant at post18 indictment, pretrial stage); Application of Newsday, Inc., 895 F.2d 74, 79 (2d Cir. 1990) (finding 19 common law right of access to search warrant once plea agreement reached and government admits 20 need for secrecy is over); see also Custer Battlefield Museum, 658 F.3d at 1196 (reserving the 21 question of whether the First Amendment right covers warrant materials post-investigation but 22 finding a common-law right). 23 There is a “clear trend” of finding a First Amendment right to access warrant materials 24 initially filed under seal. United States v. Loughner, 769 F. Supp. 2d 1188, 1193 (D. Ariz. 2011). 25 In Loughner, the court held that the “experience” prong of the First Amendment test was met. Id. DORSEY & WHITNEY LLP PETITION TO UNSEAL ELECTRONIC SURVEILLANCE DOCKETS, APPLICATIONS, AND ORDERS - 19 ________ COLUMBIA CENTER 701 FIFTH AVENUE, SUITE 6100 SEATTLE, WA 98104-7043 PHONE: (206) 903-8800 FAX: (206) 903-8820 Case 2:17-mc-00145-RSL Document 1 Filed 11/15/17 Page 29 of 41 1 The court also found that the logic prong was met. “[E]ven after the fact,” the court reasoned, 2 public scrutiny of the warrant process can “further the public’s interest in understanding the justice 3 system” and “how well it works,” and “may also serve to deter unreasonable warrant practices, 4 either by the police or the courts.” Id. at 1193-94 (citations omitted). 5 The same First Amendment right supports Petitioner’s request to access the non-warrant 6 surveillance materials sought here. The non-warrant electronic surveillance records Petitioner 7 seeks to unseal serve the same purpose as search warrants in the judicial system—they authorize 8 government information collection and compel third-party assistance to collect that information. 9 The experience of courts unsealing search warrant materials when secrecy is no longer justified 10 directly applies to unsealing other types of surveillance orders law enforcement seeks and obtains 11 in this Court. Moreover, logic supports unsealing these records because, like disclosing search 12 warrant materials, disclosing non-warrant surveillance materials will further the public’s 13 understanding of law enforcement, the Court, and the operation of the criminal justice system. 14 The common-law right of access also supports unsealing non-warrant materials when 15 secrecy is no longer justified. Courts have recognized that post-investigation search warrant 16 materials “‘have historically been available to the public.’” Custer Battlefield Museum, 658 F.3d 17 at 1193 (quoting In re N.Y. Times Co., 585 F. Supp. 2d at 88). Warrant applications generally may 18 not “be sealed indefinitely after the investigation comes to a close,” and should be sealed “only in 19 exceptional cases.” In re Sealing & Non-Disclosure, 562 F. Supp. 2d 876, 892 (S.D. Tex. 2008) 20 (citation omitted). 21 These authorities apply with equal force to non-search warrant surveillance materials 22 because “[s]ociety has an understandable interest . . . in law enforcement systems and how well 23 they work. The public has legitimate concerns about methods and techniques of police 24 investigation . . . .” In re Application and Affidavit for a Search Warrant, 923 F.2d 324, 331 (4th 25 Cir. 1991). The public interest in government demands for technical assistance in executing search DORSEY & WHITNEY LLP PETITION TO UNSEAL ELECTRONIC SURVEILLANCE DOCKETS, APPLICATIONS, AND ORDERS - 20 ________ COLUMBIA CENTER 701 FIFTH AVENUE, SUITE 6100 SEATTLE, WA 98104-7043 PHONE: (206) 903-8800 FAX: (206) 903-8820 Case 2:17-mc-00145-RSL Document 1 Filed 11/15/17 Page 30 of 41 1 warrants on encrypted information supports unsealing of the requested materials. See Mackey 2 Decl. ¶¶ 2-15; Hsieh Decl. ¶¶ 13-14. No “sufficiently compelling reasons” exist to justify indefinite 3 sealing. Foltz, 331 F.3d at 1135 (citation omitted). 4 5 6 1. Petitioner Has a Right to Access the Requested Pen Register Act Materials Under the First Amendment experience and logic test, Petitioner has a constitutional right 7 of access to post-investigation Pen/Trap materials, including orders authorizing the installation and 8 use of a pen register or a trap and trace device under 18 U.S.C. § 3123 and orders requiring a third 9 party to provide information, facilities, or technical assistance to law enforcement officials under 10 18 U.S.C. § 3124. Permitting inspection of Pen/Trap applications and orders once an investigation 11 has concluded will further public understanding of the law and “will enable the public to evaluate 12 for itself whether the government’s [requests] went too far—or did not go far enough.” Loughner, 13 769 F. Supp. 2d at 1994 (internal citation and quotation marks omitted). 14 The public also has a common law right of access to post-investigation Pen/Trap materials. 15 In re Sealing & Non-Disclosure, 562 F. Supp. 2d at 894, 896. This Court has discretion to unseal 16 these materials. Pen/Trap orders must be sealed “until otherwise ordered by the court.” 18 U.S.C. 17 § 3123(d)(1). “How long a pen/trap order should be sealed, and whether sealing should continue 18 beyond the life of the pen register itself, is left to the sound discretion of the court.” In re Sealing 19 & Non-Disclosure, 562 F. Supp. 2d at 879. The Court should exercise its discretion and unseal the 20 requested Pen/Trap materials because indefinite sealing “deprive[s] the law-abiding public of 21 significant data about the frequency of compelled Government access to individual e-mail and 22 phone records.” Id. at 886. 23 No competing interest merits indefinite sealing of post-investigation Pen/Trap materials, 24 under either a First Amendment or common law analysis. The unsealing and public disclosure of 25 the Pen/Trap materials requested by Petitioner in Section VI, infra, would not jeopardize current DORSEY & WHITNEY LLP PETITION TO UNSEAL ELECTRONIC SURVEILLANCE DOCKETS, APPLICATIONS, AND ORDERS - 21 ________ COLUMBIA CENTER 701 FIFTH AVENUE, SUITE 6100 SEATTLE, WA 98104-7043 PHONE: (206) 903-8800 FAX: (206) 903-8820 Case 2:17-mc-00145-RSL Document 1 Filed 11/15/17 Page 31 of 41 1 or future investigations, and any sensitive information in those materials could be redacted as 2 further explained below. 3 2. 4 Petitioner Has a Right to Communications Act Materials Access the Requested Stored Petitioner has constitutional and common law rights of access to the SCA materials 5 6 requested in Section VI, infra, including orders under 18 U.S.C. § 2703(d) requiring disclosure of 7 communications, records, or other information pertaining to a subscriber or a customer. Under the “experience and logic” test, Petitioner has a First Amendment right of access to 8 9 the requested SCA materials. Although there is no historical tradition of access to SCA materials, 10 the Ninth Circuit has held that the “logic” prong alone can establish a right of access if “public 11 scrutiny” would “benefit” the proceedings. See Copley Press, 518 F.3d at 1026-27. Logic supports Petitioner’s right of access to these SCA materials. Section 2703(d) orders, 12 13 like any orders issued by a court, are judicial records. United States v. Appelbaum, 707 F.3d 283, 14 290-91 (4th Cir. 2013). They serve a similar role as search warrants do, which is to ensure judicial 15 oversight of information collection during an investigation. There is no logical reason to treat 16 Section 2703(d) orders differently from search warrants and related materials once an investigation 17 has concluded. Therefore, SCA orders and related documents should be treated like post18 indictment search warrant materials, for which there is a First Amendment right of access. 19 Loughner, 769 F. Supp. 2d at 1193-94 (applying “logic” prong after holding “experience” prong 20 met). 1 As with search warrant materials, opening Section 2703 materials to public scrutiny post- 21 22 1 The Fourth Circuit’s denial in Appelbaum of a First Amendment right of access to Section 23 2703(d) materials is distinguishable because Petitioner here seeks post-investigation SCA materials. 707 F.3d at 291-92 (holding that because secrecy was necessary to support ongoing 24 criminal investigations in which such orders were sought). The Appelbaum court did not consider 25 whether the First Amendment right of access attached to materials once an investigation had concluded. DORSEY & WHITNEY LLP PETITION TO UNSEAL ELECTRONIC SURVEILLANCE DOCKETS, APPLICATIONS, AND ORDERS - 22 ________ COLUMBIA CENTER 701 FIFTH AVENUE, SUITE 6100 SEATTLE, WA 98104-7043 PHONE: (206) 903-8800 FAX: (206) 903-8820 Case 2:17-mc-00145-RSL Document 1 Filed 11/15/17 Page 32 of 41 1 investigation serves several important public interests. These interests include: “knowing that 2 proper procedures have been followed”; “understanding the justice system”; “deter[ring] 3 unreasonable [surveillance] practices, either by the police or the courts”; and “ensur[ing] that 4 judges are not merely serving as a rubber stamp for the police.” Loughner, 769 F. Supp. 2d at 1194 5 (citations and internal quotation marks omitted). 6 All of these interests are at stake in Section 2703(d) orders as in search warrants—perhaps 7 even more so. Indeed, because Section 2703(d) orders require an evidentiary showing lower than 8 the probable-cause warrant standard, public scrutiny is arguably even more important to ensure 9 that courts are not giving too much power to law enforcement under this less-demanding bar. See 10 United States v. Espudo, 954 F. Supp. 2d 1029, 1033 (S.D. Cal. 2013) (Section 2703(d)’s “‘specific 11 and articulable facts’ standard [for issuance of a court order for disclosure of user’s records] is a 12 significantly lower legal hurdle than probable cause.” (citation omitted)). 13 There is thus a First Amendment right of access to the Section 2703(d) orders and related 14 materials sought by Petitioner, and there is no compelling interest to keep them sealed. 15 Petitioner also has a common law right of access to the requested SCA materials. SCA 16 orders are “judicially authored or created documents.” Appelbaum, 707 F.3d at 290-91. 17 Applications and related materials are also “judicial records” because they play a role in the 18 adjudicatory process: “they were filed with the objective of obtaining judicial action or relief 19 pertaining to § 2703(d) orders.” Id. (citations to First, Second, Fourth, and D.C. Circuit authorities 20 omitted). 21 The common law presumption of access outweighs any countervailing interests in 22 maintaining under seal the SCA materials requested by Petitioner. The government’s “significant 23 countervailing interest” identified by the Applebaum court—not hampering ongoing investigations 24 or tipping off targets, 707 F.3d at 292-94—does not apply to Petitioner’s request, which provides 25 a mechanism for the continued sealing of SCA materials for which there is a compelling DORSEY & WHITNEY LLP PETITION TO UNSEAL ELECTRONIC SURVEILLANCE DOCKETS, APPLICATIONS, AND ORDERS - 23 ________ COLUMBIA CENTER 701 FIFTH AVENUE, SUITE 6100 SEATTLE, WA 98104-7043 PHONE: (206) 903-8800 FAX: (206) 903-8820 Case 2:17-mc-00145-RSL Document 1 Filed 11/15/17 Page 33 of 41 1 confidentiality interest such as protecting an ongoing law enforcement investigation. 2 3 3. Petitioner Has a Right to Access the Requested Wiretap Act Materials Petitioner has constitutional and common law rights of access to the Wiretap Act materials 4 requested in Section VI, infra, including orders requiring a third party to provide technical 5 assistance to law enforcement officials under 18 U.S.C. § 2511(2)(a)(ii). 6 Although there is a statutory scheme for unsealing the underlying wiretap applications and 2 7 orders themselves under 18 U.S.C. § 2518(8)(b), Petitioner has an independent First Amendment 8 right of access to the requested third-party technical assistance materials. “[A] statute cannot 9 override a constitutional right” of access. NYT I, 828 F.2d at 115 (footnote omitted). Logic supports 10 a First Amendment right of access here. The requested unsealing would “play[] a significant 11 positive role in the functioning of” how this Court administers third-party assistance orders sought 12 by law enforcement under the Wiretap Act. Press-Enter. II, 478 U.S. at 8 (citation omitted). 13 Petitioner’s request includes a mechanism for the continued sealing of Wiretap Act 14 materials for which there is a compelling confidentiality interest such as protecting an ongoing law 15 enforcement investigation. Petitioner’s request further includes a mechanism for the redaction of 16 certain information (e.g., personal identifiers) from unsealed documents. Accordingly, the Wiretap 17 Act’s privacy interests can be satisfied while permitting public access to the requested records. See 18 generally Mackey Decl., Ex. O (describing the growing, ahistorical trend of indefinitely-sealed 19 records and its threat to the public and the institution of the judiciary); Mackey Decl., Ex. H (in20 depth dive into “the most secret court docket in America”: electronic surveillance matters under 21 SCA, Wiretap, and Pen/Trap Acts). 22 The mechanisms for continued sealing and redaction provided in Petitioner’s request 23 2 18 U.S.C. § 2518(8)(b) states that “[a]pplications made and orders granted under this chapter 24 shall be sealed by the judge . . . [and] disclosed only upon a showing of good cause before a judge 25 of competent jurisdiction.” The statute seeks to protect the integrity of ongoing investigations and the privacy interests of innocent third parties and of defendants. DORSEY & WHITNEY LLP PETITION TO UNSEAL ELECTRONIC SURVEILLANCE DOCKETS, APPLICATIONS, AND ORDERS - 24 ________ COLUMBIA CENTER 701 FIFTH AVENUE, SUITE 6100 SEATTLE, WA 98104-7043 PHONE: (206) 903-8800 FAX: (206) 903-8820 Case 2:17-mc-00145-RSL Document 1 Filed 11/15/17 Page 34 of 41 1 distinguish this request from decisions in other Circuits holding that the Wiretap Act’s secrecy and 2 confidentiality provisions outweigh the public’s right of access. See In re N.Y. Times Co., 828 F.2d 3 110, 116 (2d Cir. 1987); In re N.Y. Times Co., 577 F.3d 401, 409-11 (2d Cir. 2009). It is Petitioner’s 4 understanding that the Ninth Circuit has not yet addressed how the Wiretap Act’s secrecy 5 provisions interact with the First Amendment right of access to third-party technical assistance 6 orders under the Wiretap Act. See United States v. Chow, No. 14-cr-00196, 2015 U.S. Dist. LEXIS 7 114802, at *12 (N.D. Cal. Aug. 28, 2015) (noting the lack of binding Ninth Circuit precedent on 8 access to wiretap materials). 4. 9 Petitioner Has a Right to Access the Requested All Writs Act Materials Petitioner has constitutional and common law rights of access to the All Writs Act materials 10 11 requested in Section VI, infra, including orders requiring third parties to provide technical 12 assistance to law enforcement officials under 28 U.S.C. § 1651(a). Petitioner has a First Amendment right of access to the requested AWA materials. The 13 14 “experience” prong is easily met for the requested AWA materials, including court orders and 15 related documents. This is because “there is a venerable tradition of public access to court orders.” 16 United States v. Ressam, 221 F. Supp. 2d 1252, 1262 (W.D. Wash. 2002) (qualified First 17 Amendment right of access attached to protective orders, which court ordered made publicly 18 available with classified information redacted); see also Pepsico, Inc. v. Redmond, 46 F.3d 29, 31 19 (7th Cir. 1995) (Easterbrook, J., in chambers) (“Opinions are not the litigants’ property. They 20 belong to the public, which underwrites the judicial system that produces them.” (citations 21 omitted)). It should be uncontroversial that the “venerable tradition” of access encompasses the 3 22 requested court orders issued under the AWA, first enacted in 1789, even though the AWA’s use 23 in connection with other authorities that authorize law enforcement electronic surveillance is 24 25 3 The All Writs Act was originally enacted as part of the Judiciary Act of 1789, 1 Stat. 73, § 14 (Sept. 24, 1789). DORSEY & WHITNEY LLP PETITION TO UNSEAL ELECTRONIC SURVEILLANCE DOCKETS, APPLICATIONS, AND ORDERS - 25 ________ COLUMBIA CENTER 701 FIFTH AVENUE, SUITE 6100 SEATTLE, WA 98104-7043 PHONE: (206) 903-8800 FAX: (206) 903-8820 Case 2:17-mc-00145-RSL Document 1 Filed 11/15/17 Page 35 of 41 1 relatively new. See N.Y. Tel., 434 U.S. at 174-75 (holding in 1977 that AWA was properly used to 2 compel installation of pen register). 3 The logic prong also supports First Amendment access to the requested AWA materials. 4 Courts cannot issue stand-alone AWA orders. United States v. Denedo, 556 U.S. 904, 911 (2009) 5 (“As the text of the All Writs Act recognizes, a court’s power to issue any form of relief … is 6 contingent on that court’s subject-matter jurisdiction over the case”). Issuance of an order under 7 the AWA requires “the existence of a previously-issued court order or warrant”; otherwise, “no 8 jurisdiction exists.” In re Application of the United States, 128 F. Supp. 3d 478, 483 (D.P.R. 2015). 9 Because the AWA materials Petitioner seeks must have issued in furtherance of an underlying 10 warrant or non-warrant surveillance order, and because there is a right of access to those underlying 11 documents as explained above, it follows logically that there is a right of public access to the 12 related AWA orders as well. See Loughner, 769 F. Supp. 2d at 1194 (listing interests). Logic also 13 compels access because it would allow the public to better understand how law enforcement uses 14 the AWA to accomplish some of its most controversial surveillance of individuals’ digital devices, 15 as detailed in Section III.B.4 above. 16 Petitioner also has a common law right of access to the requested AWA materials. The 17 common law presumption of access attaches to these AWA materials because they qualify as 18 “judicial records.” See Pepsico, 46 F.3d at 31 (courts’ opinions “belong to the public” (citations 19 omitted)); Glaxo Grp. Ltd. v. Leavitt, 481 F. Supp. 2d 437, 438 (D. Md. 2007) (refusing to seal 20 publicly-issued opinion because “fundamentally, … this court is a public institution doing the 21 public’s business. The public interest in an accountable judiciary generally demands that the 22 reasons for a judgment be exposed to public scrutiny.” (citations and internal quotation marks 23 omitted)). 24 The government’s applications for AWA orders and supporting (or opposing) materials are 25 also “judicial records.” See Custer Battlefield Museum, 658 F.3d at 1193 (deciding to “treat[] DORSEY & WHITNEY LLP PETITION TO UNSEAL ELECTRONIC SURVEILLANCE DOCKETS, APPLICATIONS, AND ORDERS - 26 ________ COLUMBIA CENTER 701 FIFTH AVENUE, SUITE 6100 SEATTLE, WA 98104-7043 PHONE: (206) 903-8800 FAX: (206) 903-8820 Case 2:17-mc-00145-RSL Document 1 Filed 11/15/17 Page 36 of 41 1 search warrant affidavits as judicial records”). Because AWA orders must be premised on an 2 underlying warrant or order, it follows that AWA applications and supporting materials are, like 3 the original warrant affidavits, also “judicial records.” Cf. United States v. Tillman, No. 07-cr4 1209, 2009 U.S. Dist. LEXIS 35400, at *4 (S.D.N.Y. Apr. 6, 2009) (court order, government’s 5 application for disclosure of defendant’s tax returns, and supporting papers were “judicial 6 documents”). 7 Therefore, a “strong presumption in favor of access” attaches to the requested AWA 8 materials. Foltz, 331 F.3d at 1135 (citation omitted). Petitioner’s request provides mechanisms for 9 continued sealing and redaction, so disclosure will not “jeopardize an important law enforcement 10 or security interest in this particular instance.” Tillman, 2009 U.S. Dist. LEXIS 35400, at *11-12 11 (“general proposition” that government’s applications for court orders may sometimes contain 12 sensitive details of ongoing investigations does not “justify a blanket rule of permanent non13 disclosure”). 14 15 16 C. Redaction Is an Appropriate Mechanism to Address Privacy Interests and Other Concerns with Petitioner’s Request to Unseal Judicial Records Petitioner’s request includes a mechanism for the redaction of sensitive information (e.g., 17 personal identifiers) from unsealed documents. Redaction is an appropriate way to address privacy 18 interests and other concerns with Petitioner’s request to unseal judicial records in electronic 19 surveillance cases. 20 Petitioner acknowledges that the requested materials may contain sensitive information for 21 which there is a legitimate need to maintain secrecy. However, the need to maintain secrecy for 22 certain information in the requested records is not a sufficiently compelling reason to maintain the 23 broad sealing of all records sought by Petitioner—obscuring the very existence of the records 24 themselves—much less rebut Petitioner’s First Amendment and common law rights of access to 25 those judicial records. Redaction, rather than wholesale indefinite sealing, is the better way to DORSEY & WHITNEY LLP PETITION TO UNSEAL ELECTRONIC SURVEILLANCE DOCKETS, APPLICATIONS, AND ORDERS - 27 ________ COLUMBIA CENTER 701 FIFTH AVENUE, SUITE 6100 SEATTLE, WA 98104-7043 PHONE: (206) 903-8800 FAX: (206) 903-8820 Case 2:17-mc-00145-RSL Document 1 Filed 11/15/17 Page 37 of 41 1 manage these competing interests. See Custer Battlefield Museum, 658 F.3d at 1195 n.5 2 (competing concerns can typically be accommodated “by redacting sensitive information rather 3 than refusing to unseal the materials entirely.” (citations omitted)). 4 As noted above, Petitioner’s request includes a mechanism for the continued sealing of 5 documents for which secrecy is needed to protect an ongoing law enforcement investigation. Once 6 the underlying investigation has concluded, however, the need for sealing goes away, and 7 “[l]egitimate confidentiality interests” can be adequately protected through the less-restrictive 8 means of redaction. In re Sealing & Non-Disclosure, 562 F. Supp. 2d at 886, 894-95 (footnote and 9 citation omitted). 10 Petitioner does not object in general to redactions required by statute or rule, or to the 11 redaction of sensitive law-enforcement information or personal information such as names or 12 contact information of defendants, victims, unindicted third parties, surveillance targets, their 13 interlocutors, or confidential informants. Petitioner does, however, request that the names of 14 companies that have received technical assistance orders and other orders seeking access to their 15 users’ or customers’ electronic information and records not be redacted from documents unsealed 16 in response to this Petition. VI. 17 18 SPECIFIC RELIEF REQUESTED Petitioner seeks public docketing and unsealing of certain electronic surveillance 19 applications and orders filed in the United States District Court for the Western District of 20 Washington, as set forth below. Petitioner respectfully requests that the Court issue an order 21 providing the following prospective and retrospective relief. 22 For future cases filed in the Western District of Washington: 23 1. All cases seeking any of the following shall be designated as a Magistrate Judge 24 (MJ) case or as a Miscellaneous (MC) case in the Court’s CM/ECF system, and the 25 docket sheets in these cases shall be unsealed within 180 days after case opening, DORSEY & WHITNEY LLP PETITION TO UNSEAL ELECTRONIC SURVEILLANCE DOCKETS, APPLICATIONS, AND ORDERS - 28 ________ COLUMBIA CENTER 701 FIFTH AVENUE, SUITE 6100 SEATTLE, WA 98104-7043 PHONE: (206) 903-8800 FAX: (206) 903-8820 Case 2:17-mc-00145-RSL Document 1 Filed 11/15/17 Page 38 of 41 1 except to the extent the Court grants a request for continued sealing: 2 a. an order authorizing the installation and use of a pen register or a trap and trace device under 18 U.S.C. § 3123; 3 b. 4 an order requiring a third party to provide information, facilities, or technical assistance to law enforcement officials under 18 U.S.C. § 3124; 5 c. 6 an order under 18 U.S.C. § 2703(d) requiring disclosure of communications, 7 records, or other information pertaining to a subscriber or customer, as 8 described in 18 U.S.C. § 2703(b) or (c); d. 9 a warrant requiring a provider of electronic communication service or 10 remote computing service to disclose the contents of a wire or electronic 11 communication as described in 18 U.S.C. § 2703(a) or (b), or a record or 12 other information pertaining to a subscriber or customer as described in 18 13 U.S.C. § 2703(c); e. 14 enforcement officials under 18 U.S.C. § 2511(2)(a)(ii); or 15 f. 16 an order requiring a third party to provide technical assistance to law enforcement officials under 28 U.S.C § 1651(a). 17 18 an order requiring a third party to provide technical assistance to law 2. All applications and supporting documents, including affidavits, seeking any of 19 1(a)-(f) and all orders granting or denying said applications shall be unsealed within 20 180 days after case opening, except to the extent the Court grants a request for 21 continued sealing. 22 3. Requests for continued sealing shall identify with particularity the information in 23 each docket sheet and document to remain sealed and the compelling interest (e.g., 24 to protect an ongoing law enforcement investigation) that justifies the continued 25 sealing of that information. Except as otherwise provided by the Court, a continued DORSEY & WHITNEY LLP PETITION TO UNSEAL ELECTRONIC SURVEILLANCE DOCKETS, APPLICATIONS, AND ORDERS - 29 ________ COLUMBIA CENTER 701 FIFTH AVENUE, SUITE 6100 SEATTLE, WA 98104-7043 PHONE: (206) 903-8800 FAX: (206) 903-8820 Case 2:17-mc-00145-RSL Document 1 Filed 11/15/17 Page 39 of 41 1 sealing order shall expire after 180 days, at which time the sealed information shall 2 be unsealed and made publicly available. The Court may authorize the redaction of 3 certain information (e.g.., personal identifiers) from unsealed docket sheets and 4 documents. 5 4. To the extent not otherwise publicly disclosed, the following information shall be 6 publicly disclosed in a notice filed at the time of the initial application: (1) law 7 enforcement agency filing the application; (2) jurisdictional authority (e.g., Wiretap 8 Act, SCA, Pen/Trap Statute, Fed. R. Crim. P. 41); (3) relief sought (e.g., search 9 warrant, seizure warrant, wire interception, pen register, trap and trace, tracking 10 device, prospective cell site data, historical cell site data, toll records, email 11 contents, customer account records); (4) type of crime under investigation; (5) 12 identity of recipient of order/warrant (e.g., identity of phone company, Internet 13 Service Provider). 14 For past cases filed in the Western District of Washington between January 1, 2011 and 15 the present: 16 5. All docket sheets for cases seeking any of the following shall be unsealed within 17 180 days after the date of this Order, except to the extent the Court grants a request 18 for continued sealing: 19 a. trace device under 18 U.S.C. § 3123; 20 21 b. an order requiring a third party to provide information, facilities, or technical assistance to law enforcement officials under 18 U.S.C. § 3124; 22 23 an order authorizing the installation and use of a pen register or a trap and c. an order under 18 U.S.C. § 2703(d) requiring disclosure of communications, 24 records, or other information pertaining to a subscriber or customer, as 25 described in 18 U.S.C. § 2703(b) or (c); DORSEY & WHITNEY LLP PETITION TO UNSEAL ELECTRONIC SURVEILLANCE DOCKETS, APPLICATIONS, AND ORDERS - 30 ________ COLUMBIA CENTER 701 FIFTH AVENUE, SUITE 6100 SEATTLE, WA 98104-7043 PHONE: (206) 903-8800 FAX: (206) 903-8820 Case 2:17-mc-00145-RSL Document 1 Filed 11/15/17 Page 40 of 41 d. 1 a warrant requiring a provider of electronic communication service or 2 remote computing service to disclose the contents of a wire or electronic 3 communication as described in 18 U.S.C. § 2703(a) or (b), or a record or 4 other information pertaining to a subscriber or customer as described in 18 5 U.S.C. § 2703(c); e. 6 an order requiring a third party to provide technical assistance to law enforcement officials under 18 U.S.C. § 2511(2)(a)(ii); or 7 f. 8 an order requiring a third party to provide technical assistance to law enforcement officials under 28 U.S.C § 1651(a). 9 6. 10 All applications and supporting documents, including affidavits, seeking any of 11 5(a)-(f) and all orders granting or denying said applications shall be unsealed within 12 180 days after the date of this order, except to the extent the Court grants a request 13 for continued sealing. 7. 14 Requests for continued sealing shall be filed within 120 days of the date of this 15 order. Such requests shall identify with particularity the information in each docket 16 sheet and document to remain sealed and the compelling interest (e.g., to protect an 17 ongoing law enforcement investigation) that justifies the continued sealing of that 18 information. Except as otherwise provided by the Court, a continued sealing order 19 shall expire after 180 days, at which time the sealed information shall be unsealed 20 and made publicly available. The Court may authorize the redaction of certain 21 information (e.g., personal identifiers) from unsealed docket sheets and documents. 22 / / / 23 / / / 24 / / / 25 / / / DORSEY & WHITNEY LLP PETITION TO UNSEAL ELECTRONIC SURVEILLANCE DOCKETS, APPLICATIONS, AND ORDERS - 31 ________ COLUMBIA CENTER 701 FIFTH AVENUE, SUITE 6100 SEATTLE, WA 98104-7043 PHONE: (206) 903-8800 FAX: (206) 903-8820 Case 2:17-mc-00145-RSL Document 1 Filed 11/15/17 Page 41 of 41 VII. 1 2 CONCLUSION For the reasons explained herein, Petitioner respectfully requests that the Court grant the 3 requested relief set forth above and in Petitioner’s concurrently filed Proposed Order. 4 5 Dated: November 15, 2017 Respectfully submitted, 6 By: s/ Geoffrey M. Godfrey Geoffrey M. Godfrey (SBN 46876) godfrey.geoff@dorsey.com 7 8 By: s/ Nathan T. Alexander Nathan T. Alexander (SBN 37040) alexander.nathan@dorsey.com 9 10 11 By: s/ David H. Tseng David H. Tseng (SBN 48334) tseng.david@dorsey.com DORSEY & WHITNEY LLP Columbia Center 701 Fifth Avenue, Suite 6100 Seattle, WA 98104-7043 Telephone: (206) 903-8800 Facsimile: (206) 903-8820 12 13 14 15 16 17 18 Aaron Mackey (pro hac vice to be filed) amackey@eff.org ELECTRONIC FRONTIER FOUNDATION 815 Eddy Street San Francisco, CA 94109 Telephone: (415) 436-9333 19 20 21 22 Attorneys for Petitioner INDEX NEWSPAPERS LLC D/B/A THE STRANGER 23 24 25 DORSEY & WHITNEY LLP PETITION TO UNSEAL ELECTRONIC SURVEILLANCE DOCKETS, APPLICATIONS, AND ORDERS - 32 ________ COLUMBIA CENTER 701 FIFTH AVENUE, SUITE 6100 SEATTLE, WA 98104-7043 PHONE: (206) 903-8800 FAX: (206) 903-8820