Case 2:17-mc-00145-RSL Document 18 Filed 04/27/18 Page 1 of 32 THE HONORABLE ROBERT S. LASNIK 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 IN RE PETITION OF INDEX NEWSPAPERS LLC D/B/A THE STRANGER TO UNSEAL ELECTRONIC SURVEILLANCE DOCKETS, APPLICATIONS, AND ORDERS CASE NO. 2:17-MC-00145-RSL 13 REPLY IN SUPPORT OF PETITION TO UNSEAL ELECTRONIC SURVEILLANCE DOCKETS, APPLICATIONS, AND ORDERS 14 Noting Date: May 4, 2018 12 15 16 17 18 19 20 21 22 23 24 25 DORSEY & WHITNEY LLP REPLY ISO PETITION TO UNSEAL DOCKETS, APPLICATIONS, AND ORDERS 2:17-MC-00145-RSL ________ 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 18 Filed 04/27/18 Page 2 of 32 TABLE OF CONTENTS 1 2 3 4 I.  INTRODUCTION ...............................................................................................................1  II.  ARGUMENT .......................................................................................................................2  A.  The Court Can Delay Any Decision on the Petition’s Merits Until After the Factual Record Has Been Further Developed ..........................................................2  B.  7 The Court Has Jurisdiction and Authority to Grant Petitioner’s Requested Relief ........................................................................................................................5  8 1.  The Petition Creates a Controversy Under Article III By Seeking Access to Particular Sealed Court Dockets, Applications, and Orders ......................................................................................................................6  2.  The Petition Does Not Request Reversal of Other Judges’ Sealing Orders, Nor Does It Request Unsealing “Untethered to the Facts of a Particular Case.” ......................................................................................10  3.  Petitioner Has Standing to Seek the Requested Relief ..............................12  5 6 9 10 11 12 13 C.  Petitioner Has First Amendment and Common Law Rights to Access Basic Docketing Information Regarding Electronic Surveillance Cases Filed in this Court................................................................................................................16  D.  17 Petitioner Has First Amendment and Common Law Rights to Access the Underlying Applications and Orders in Electronic Surveillance Cases Filed in this Court, Once Secrecy Is No Longer Necessary ............................................18  18 1.  Petitioner has a First Amendment Right of Access to the Requested Judicial Records .........................................................................................18  2.  Petitioner has a Common Law Right of Access to the Requested Judicial Records .........................................................................................23  14 15 16 19 20 21 III.  CONCLUSION ..................................................................................................................23  22 23 24 25 DORSEY & WHITNEY LLP REPLY ISO PETITION TO UNSEAL DOCKETS, APPLICATIONS, AND ORDERS - i 2:17-MC-00145-RSL ________ 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 18 Filed 04/27/18 Page 3 of 32 TABLE OF AUTHORITIES 1 2 3 Page(s) CASES 4 Detroit Free Press v. Ashcroft, 303 F.3d 681 (6th Cir. 2002) ....................................................................................... 17 5 6 District of Columbia Court of Appeals v. Feldman, 460 U.S. 462 (1983) ....................................................................................................... 7 7 Doe v. Public Citizen, 8 749 F.3d 246 (4th Cir. 2014) ....................................................................................... 16 9 Federal Election Comm’n v. Akins, 10 11 524 U.S. 11 (1998) ........................................................................................... 12, 13, 15 Foltz v. State Farm Mut. Auto. Ins. Co., 331 F.3d 1122 (9th Cir. 2003) ..................................................................................... 23 12 13 Globe Newspaper Co. v. Superior Court, 457 U.S. 596 (1982) ............................................................................................... 13, 21 14 Hagestad v. Tragesser, 15 49 F.3d 1430 (9th Cir. 1995) ....................................................................................... 23 16 Hartford Courant Co. v. Pellegrino, 17 18 19 20 380 F.3d 93 (2d Cir. 2004)............................................................................... 11, 12, 16 In re Application and Affidavit for a Search Warrant, 923 F.2d 324 (4th Cir. 1991) ....................................................................................... 20 In re Copley Press, 518 F.3d 1022 (9th Cir. 2008) ............................................................................... 18, 19 21 In re Granick, 22 23 No. 4:16-mc-80206-KAW, Dkt. 48 (Mar. 12 Order setting status conference for May 3, 2018) .......................................................................................... 9 In re Granick, No. 4:16-mc-80206-KAW, Dkt. 50 (United States Supplemental Brief, March 26, 2018) .................................................................................................... passim 25 24 DORSEY & WHITNEY LLP REPLY ISO PETITION TO UNSEAL DOCKETS, APPLICATIONS, AND ORDERS - ii 2:17-MC-00145-RSL ________ 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 18 Filed 04/27/18 Page 4 of 32 1 In re Leopold, No. 13-mc-00712, 2018 U.S. Dist. LEXIS 30211 (D.D.C. Feb. 26, 2018) ..................................................................................................................... passim 2 3 4 In re New York Times, 585 F. Supp. 2d 83 (D.D.C. 2008) ............................................................................... 21 5 In re New York Times Co., 577 F.3d 401 (2d Cir. 2009)......................................................................................... 17 6 7 In re Opinions & Orders of this Court Addressing Bulk Collection of Data Under the Foreign Intelligence Surveillance Act, No. Misc. 13-08, slip op. (Foreign Intel. Surv. Ct. Nov. 9, 2017) (en banc), aff’d, In re Certification of Question of Law, No. FISCR 18-01, slip op. (FISA Ct. Review March 16, 2018)1 .......................................................... 8, 14 8 9 10 11 In re Release of Court Records, 526 F. Supp. 2d 484 (FISA Ct. 2007) .................................................................... 5, 7, 8 12 In re Sealed Affidavit(s) to Search Warrants Executed on February 14, 1979, 13 600 F.2d 1256 (9th Cir. 1979) ....................................................................................... 6 14 15 In re Sealed Case, 199 F.3d 522 (D.C. Cir. 2000) ....................................................................................... 9 16 In re Search Warrant for Secretarial Area Outside Office of Gunn, 855 F.2d 569 (8th Cir. 1988) ....................................................................................... 19 17 18 In re Washington Post Co., 807 F.2d 383 (4th Cir. 1986) ....................................................................................... 17 19 20 In re WP Co., LLC, 201 F. Supp. 3d 109 (D.D.C. 2016) ............................................................................. 22 21 22 Kamakana v. City & Cty. of Honolulu, 447 F.3d 1172 (9th Cir. 2006) ..................................................................................... 23 23 24 25 1 available at, http://www.fisc.uscourts.gov/sites/default/files/Misc%201308%20Opinion%20November%209%202017.pdf DORSEY & WHITNEY LLP REPLY ISO PETITION TO UNSEAL DOCKETS, APPLICATIONS, AND ORDERS - iii 2:17-MC-00145-RSL ________ 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 18 Filed 04/27/18 Page 5 of 32 1 Lincoln Benefit Life Ins. Co. v. AEI Life, LLC, 2 800 F.3d 99 (3d Cir. 2015)........................................................................................... 10 3 New York Civil Liberties Union v. New York City Transit Auth., 684 F.3d 286 (2d Cir. 2011)......................................................................................... 12 4 5 Nixon v. Warner Commc’ns, Inc., 435 U.S. 589 (1978) ................................................................................................... 6, 7 6 Oppenheimer Fund, Inc. v. Sanders, 437 U.S. 340 (1978) ..................................................................................................... 10 7 8 Oregonian Publ’g Co. v. U.S. Dist. Court for the Dist. of Oregon, 9 920 F.2d 1462 (9th Cir. 1990) ....................................................................................... 7 10 Pansy v. Borough of Stroudsburg, 23 F.3d 772 (3d Cir. 1994)..................................................................................... 13, 14 11 12 Pepsico v. Redmond, 46 F.3d 29 (7th Cir. 1995) ........................................................................................... 19 13 Plaut v. Spendthrift Farm, Inc., 14 514 U.S. 211 (1995) ....................................................................................................... 7 15 Press-Enterprises Co. v. Superior Court, 16 17 478 U.S. 1 (1986) ......................................................................................................... 17 Public Citizen v. U.S. Dep’t of Justice, 491 U.S. 440 (1989) ......................................................................................... 13, 15, 16 18 19 Richards v. Wisconsin, 520 U.S. 385 (1997) ..................................................................................................... 20 20 Richmond Newspapers. Inc. v. Virginia, 21 448 U.S. 555 (1980) ..................................................................................................... 13 22 Times Mirror Co. v. United States, 23 24 873 F.2d 1210 (9th Cir. 1989) ............................................................................... 20, 21 United States v. Applebaum, 707 F.3d 283 (4th Cir. 2013) ................................................................................. 21, 23 25 DORSEY & WHITNEY LLP REPLY ISO PETITION TO UNSEAL DOCKETS, APPLICATIONS, AND ORDERS - iv 2:17-MC-00145-RSL ________ 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 18 Filed 04/27/18 Page 6 of 32 1 United States v. Bus. of the Custer Battlefield Museum, 2 658 F.3d 1188 (9th Cir. 2011) ............................................................................... 21, 23 3 United States v. Chow, No. 14-cr-00196 (N.D. Cal. Aug. 28, 2015) ................................................................ 22 4 5 United States v. Cianfrani, 573 F.2d 835 (3d Cir. 1978)................................................................................... 13, 15 6 United States v. Loughner, 769 F. Supp. 2d 1188 (D. Ariz. 2011) ............................................................. 19, 20, 21 7 8 United States v. Mendoza, 9 698 F.3d 1303 (10th Cir. 2012) ................................................................................... 16 10 United States v. Ochoa-Vasquez, 428 F.3d 1015 (11th Cir. 2005) ................................................................................... 16 11 12 United States v. Ressam, 221 F. Supp. 2d 1252 (W.D. Wash. 2002) ................................................................... 19 13 United States v. Valenti, 14 987 F.2d 708 (11th Cir. 1993) ..................................................................................... 16 15 Warth v. Seldin, 16 17 422 U.S. 490 (1975) ..................................................................................................... 15 STATUTES 18 18 U.S.C. 3103(a) .............................................................................................................. 20 19 28 U.S.C. § 1331 ................................................................................................................. 6 20 42 U.S.C. § 1983 ............................................................................................................... 11 21 All Writs Act (28 U.S.C. § 1651) ................................................................................ 18, 19 22 23 24 25 Federal Advisory Committee Act (5 U.S.C. app 2) .................................................... 15, 16 Pen Register Trap and Trace Act (18 U.S.C. § 3123) ................................................ 18, 23 Stored Communications Act (18 U.S.C. § 2703, 2705) ............................................. passim DORSEY & WHITNEY LLP REPLY ISO PETITION TO UNSEAL DOCKETS, APPLICATIONS, AND ORDERS - v 2:17-MC-00145-RSL ________ 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 18 Filed 04/27/18 Page 7 of 32 1 Wiretap Act (18 U.SC. § 2518) ................................................................................... 17, 18 2 OTHER AUTHORITIES 3 First Amendment ........................................................................................................ passim 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 DORSEY & WHITNEY LLP REPLY ISO PETITION TO UNSEAL DOCKETS, APPLICATIONS, AND ORDERS - vi 2:17-MC-00145-RSL ________ 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 18 Filed 04/27/18 Page 8 of 32 I. 1 2 INTRODUCTION Petitioner, Index Newspapers LLC d/b/a The Stranger, is eager to work with the Court, the 3 Clerk of the Court, and the United States Attorney’s Office for the Western District of Washington 4 (“USAO”) to identify and unseal the requested judicial records and to explore prospective changes 5 to the Court’s docketing practices that will allow public access to these types of records in future 6 cases, without creating undue burden. 7 This Court should order that such a process proceed. Petitioner recognizes there may be 8 obstacles to identifying and unsealing some records requested in the Petition. But that is no reason 9 to refuse all relief. Petitioner seeks to work directly with the Clerk’s Office and the USAO to 10 minimize the burden associated with the requested relief and to identify a path forward consistent 11 with the public’s constitutional and common law rights of access to these judicial proceedings and 12 records. 13 The declarations from the Clerk of the Court and the USAO filed with the USAO’s brief 14 provide important new details regarding docketing and sealing practices in this District, including 15 information showing that many of the requested records may be identified with assistance from 16 the Clerk’s Office by searching for particular words or phrases in the sealed records in the Court’s 17 CM/ECF system. Additionally, both the Clerk’s Office and the USAO appear willing to discuss 18 prospective changes to the Court’s docketing practices that may help all interested parties while 19 facilitating public access to these records once secrecy is no longer necessary. 20 There is no jurisdictional bar to this case proceeding, and USAO’s various non- 21 justiciability arguments are unsupported or mischaracterize the Petition, as addressed in further 22 detail below. This Court has jurisdiction and authority to adjudicate the merits of Petitioner’s 23 requested relief. 24 This Court need not reach the merits of the dispute at this time. If the Court chooses to, 25 however, Petitioner is entitled to the relief it seeks under the First Amendment and common law. DORSEY & WHITNEY LLP REPLY ISO PETITION TO UNSEAL DOCKETS, APPLICATIONS, AND ORDERS - 1 2:17-MC-00145-RSL ________ 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 18 Filed 04/27/18 Page 9 of 32 II. 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A. ARGUMENT The Court Can Delay Any Decision on the Petition’s Merits Until After the Factual Record Has Been Further Developed. To the extent this Court is not ready to grant Petitioner’s requested relief, which, as explained below, it has the power to do, it should first allow the parties to further develop the factual record regarding the feasibility of the requested retrospective and prospective relief. To that end, the Court should (1) order the parties to meet and confer regarding ways to provide part or all of the requested relief without imposing undue burden on the USAO and the Clerk’s Office, and (2) set a status conference in 60 days so the parties can update the Court on the status of their discussions. As in Leopold and Granick, Petitioner seeks to confer with the USAO and the Clerk’s Office “to work together, in good faith, to identify areas of common ground and compromise” and to narrow the issues in dispute. In re Leopold, No. 13-mc-00712, 2018 U.S. Dist. LEXIS 30211, at *2 (D.D.C. Feb. 26, 2018). Petitioner hopes this process can be “largely collaborative rather than an acrimonious litigation.” Id. The information newly provided by the Clerk’s Office and the USAO makes clear that there are opportunities to identify and unseal at least some of the requested records without undue burden. The declarations filed with the USAO’s brief provide new details regarding the number of historically sealed matters covered by the Petition, the Court’s and the USAO’s practices surrounding these records, and the challenges associated with locating and reviewing the materials sought. See, e.g., Declaration of William M. McCool (Dkt. 14-2) (“McCool Decl.”) ¶¶ 9-10; Declaration of Criminal Chief Tessa M. Gorman (Dkt. 14-1) (“Gorman Decl.”) ¶¶ 14-15. The USAO stated that it is ready to work with the Court to address the issues raised in the Petition, even if the USAO does not believe this litigation is the way to accomplish that change. Dkt. 14 (USAO Response) at 59. As an initial matter, there are far fewer sealed electronic surveillance matters covered by DORSEY & WHITNEY LLP REPLY ISO PETITION TO UNSEAL DOCKETS, APPLICATIONS, AND ORDERS - 2 2:17-MC-00145-RSL ________ 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 18 Filed 04/27/18 Page 10 of 32 1 the Petition in this case as compared to Leopold. In re Leopold, 2018 U.S. Dist. LEXIS 30211, at 2 *15, 18-19. In Leopold, the total number of sealed matters included approximately 2,248 PR/TT 3 matters, 2,636 § 2703(d) matters, and 1,266 Stored Communications Act (SCA) warrant matters. 4 Id. Here, the total number of all Grand Jury (GJ) matters during the requested time period is 5 approximately 2,419. See McCool Decl. ¶ 10. And only a subset of those 2,419 matters are 2 6 electronic surveillance matters covered by the Petition. Id. ¶ 9. Petitioner should be permitted to explore ways the Clerk’s Office can identify the GJ 7 8 matters that are responsive to the Petition. Petitioner is confident that through discussions with the Clerk’s Office and the USAO, and 9 10 by sampling the results of particular search terms as one might do during discovery in a civil case, 11 the parties can develop an approach to identify a subset of responsive matters to unseal without 12 undue burden. Petitioner understands there is no single search term that can identify all responsive 13 matters. McCool Decl. ¶ 15. It appears, however, that by using a combination of different search 14 strategies to query the Court’s CM/ECF system, the Clerk’s Office could identify a substantial 15 portion of responsive matters. For example, the Clerk’s Office could search sealed GJ docket 16 sheets for terms corresponding to the type of process sought. See id. (“For example, pen register 17 orders can be identified as “Pen Register,” but also as “[phone number],” “cell phone,” “[provider] 18 cell phone,” or “target telephone.”). The Clerk’s Office may identify responsive matters by 19 searching for the names of common service providers, such as Comcast and AT&T, or by 20 searching for the “@” symbol that would be found in email addresses targeted by certain 3 21 surveillance applications and orders. Search strategies employed in Leopold should be attempted 22 2 23 The Petition also covers SCA Warrant materials, which are docketed as MJ matters. McCool Decl. ¶ 13. 24 3 The actual names, email addresses, phone numbers and other identifying information contained 25 in the case name could potentially be properly redacted before making the docket or the underlying materials public, depending on the circumstances discussed below. DORSEY & WHITNEY LLP REPLY ISO PETITION TO UNSEAL DOCKETS, APPLICATIONS, AND ORDERS - 3 2:17-MC-00145-RSL ________ 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 18 Filed 04/27/18 Page 11 of 32 4 1 here as well. This Court should also permit Petitioner to explore ways the USAO can link applications 2 3 and orders authorizing the use of a particular type of process with the investigation or charged case 4 the individual process was associated with, without the need for a case-by-case review. Although 5 the USAO’s system for maintaining paper and electronic files differs from the Court’s CM/ECF 6 system, the USAO receives paper copies of records sought by Petitioner when the Court issues an 7 order authorizing the use of an investigatory process. Gorman Decl. ¶ 13. Those documents 8 identify the docket number assigned by the Court and therefore in at least some cases can identify 9 particular records at issue here. Additionally, even though the USAO’s electronic case tracking 10 system includes no particular data entry field where the Court’s GJ or Magistrate Judge (MJ) 11 docket numbers must be recorded, id. ¶¶ 14-15, such information might be recorded (and therefore 12 searchable) in other fields in the USAO’s tracking system. The USAO might also locate relevant 13 cases in its electronic tracking system using search terms other than the GJ or MJ docket numbers 14 assigned by the Court. Regarding the historic SCA search warrant materials sought by the Petition, the USAO 15 16 indicates that some of these records may already be unsealed and searchable on the Court’s 17 CM/ECF system. Records concerning search warrant applications, orders, and related materials 18 for the contents of communications sought under the Stored Communications Act are designated 19 as MJ matters and filed on a public docket, often under seal. McCool Decl. ¶¶ 12-14. In 2015, 20 the USAO adopted a practice of moving to unseal SCA warrant materials after 16 months when 21 certain conditions are met. Gorman Decl. ¶ 16. This Court should order that Petitioner be 22 4 For example, in Leopold, the Clerk’s Office was able to identify applications and orders based 23 on “event types” in CM/ECF that list specific statutory authorities, such as specific provisions of the Stored Communications Act, e.g., 18 U.S.C. § 2703(d). Leopold, 2018 U.S. Dist. LEXIS 24 30211, at *18, n.12. The Clerk’s Office also identified common phrases that would be associated 25 with the case names for certain records, such as “Information associated with,” “Email account,” “User ID,” and “Computer servers.” Id. at *17, n.11. DORSEY & WHITNEY LLP REPLY ISO PETITION TO UNSEAL DOCKETS, APPLICATIONS, AND ORDERS - 4 2:17-MC-00145-RSL ________ 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 18 Filed 04/27/18 Page 12 of 32 1 permitted to explore what portion of the historic SCA search warrant materials sought by the 2 Petition have not yet been reviewed for unsealing by the USAO. Regarding prospective relief, this Court should order the Parties to meet and confer 3 4 regarding changes to the docketing practices for electronic surveillance matters in this District and 5 to assist the Court in any way that might increase public access moving forward. The electronic 6 docketing approaches adopted or being explored by other courts may provide a path forward. In 7 Leopold, the Clerk’s Office and the USAO in the District of Columbia entered into a Memorandum 8 of Understanding that established new procedures for docketing electronic surveillance materials 9 and reporting those filings on a semi-annual basis. In re Leopold, 2018 U.S. Dist. LEXIS 30211, 10 at *90-94. In Granick, the USAO in the Northern District of California indicated that it has begun 11 similar conversations. In re Granick, No. 4:16-mc-80206-KAW, Dkt. 50 at 4-5, 7-8 (United States 12 Supplemental Brief, March 26, 2018). These approaches benefit the Clerk of the Court (by 13 providing standardized docketing procedures), the USAO (by permitting filing and receipt of 14 electronic surveillance applications and orders electronically), and the public (by providing access 5 15 to the dockets and underlying materials). 16 B. 17 The Court has jurisdiction to adjudicate the merits of the Petition. “Indeed, it would be 18 19 20 21 The Court Has Jurisdiction and Authority to Grant Petitioner’s Requested Relief. quite odd if [the Court] did not have jurisdiction in the first instance to adjudicate a claim of right to the court’s very own records and files.” In re Release of Court Records, 526 F. Supp. 2d 484, 487 (FISA Ct. 2007). 5 These discussions could address issues such as the USAO’s concerns regarding Petitioner’s proposal to unseal electronic surveillance materials 180 days after case opening except to the extent 23 the Court grants a request for continued sealing. See Dkt. 1 at 28-30; Dkt. 14 at 57. Although Petitioner believes its proposal strikes an appropriate balance between the public’s constitutional 24 and common law rights of access and the need for secrecy that initially justified sealing these 25 materials (and that may justify continued sealing), Petitioner is open to discussing a longer sealing period that will address the USAO’s concerns while still permitting public access to the records. 22 DORSEY & WHITNEY LLP REPLY ISO PETITION TO UNSEAL DOCKETS, APPLICATIONS, AND ORDERS - 5 2:17-MC-00145-RSL ________ 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 18 Filed 04/27/18 Page 13 of 32 1 The USAO’s arguments ignoring this uncontroversial principle must be rejected. The 2 supposed breadth of relief sought by Petitioner does not transcend this Court’s jurisdiction. This 3 Court has jurisdiction even if Petitioner failed to specify the case numbers of the matters that are 4 under seal and then intervene in those cases. And your Honor has authority to unseal records 5 sealed by other judges of this Court. Dkt. 14 at 24-28. 6 Because the Petition seeks relief under this Court’s inherent authority over its records and 7 under the First Amendment and federal common law, the Court can adjudicate the merits of the 8 Petition. Petitioner invoked this Court’s Article III authority and its subject matter jurisdiction to 9 request that it unseal judicial records from cases over which this Court has jurisdiction. Dkt. 1 at 10 2. The Constitution invests this Court with inherent powers, including “supervisory power over 11 its own records and files.” Nixon v. Warner Commc’ns, Inc., 435 U.S. 589, 598 (1978); In re 12 Sealed Affidavit(s) to Search Warrants Executed on February 14, 1979, 600 F.2d 1256, 1257 (9th 13 Cir. 1979). Congress further granted this Court subject matter jurisdiction over “all actions arising 14 under the Constitution, laws, or treaties of the United States.” 28 U.S.C. § 1331. 15 The USAO concedes that the Court has broad inherent power over its records, and that the 16 public and the press can seek relief under the First Amendment and common law to unseal judicial 17 records. Dkt. 14 at 22-23, 25, and 30. Its various non-justiciability arguments are flawed, 18 unsupported by precedent, and provide no basis for avoiding the merits of the Petition. 19 1. 20 21 22 23 24 25 The Petition Creates a Controversy Under Article III By Seeking Access to Particular Sealed Court Dockets, Applications, and Orders. The USAO’s argument that the Petition fails to create a case or controversy as required by the Constitution, because it is seeking structural reforms more properly left to other branches of government, or the requested relief is too broad for this Court to grant, fails in multiple respects. Dkt. 14 at 24-27. The USAO’s contention that the Petition seeks legislative or administrative relief is legally DORSEY & WHITNEY LLP REPLY ISO PETITION TO UNSEAL DOCKETS, APPLICATIONS, AND ORDERS - 6 2:17-MC-00145-RSL ________ 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 18 Filed 04/27/18 Page 14 of 32 1 incorrect. The Petition identifies a distinct legal controversy involving Petitioner’s qualified First 2 Amendment and common law rights of access to judicial records that remain under seal. See 3 Nixon, 435 U.S. at 597 (“It is clear that courts of this country recognize a general right to inspect 4 and copy . . . judicial records and documents.”); Oregonian Publ’g Co. v. U.S. Dist. Court for the 5 Dist. of Oregon, 920 F.2d 1462, 1465 (9th Cir. 1990) (“Under the first amendment, the press and 6 the public have a presumed right of access to court proceedings and documents.”). Ruling on the 7 Petition would resolve Petitioner’s First Amendment and common law rights of access regarding 8 the sealed materials sought by the Petition. In re Release of Court Records, 526 F. Supp. 2d at 9 487. The USAO’s reliance on cases finding a lack of jurisdiction on grounds that adjudication 10 would require resolution of abstract legal questions or proscribe rules for every citizen are thus 11 inapt. See Dkt. 14 at 24-26 (citing Plaut v. Spendthrift Farm, Inc., 514 U.S. 211 (1995); District 12 of Columbia Court of Appeals v. Feldman, 460 U.S. 462 (1983)). 13 Further, the USAO’s contention that Petitioner’s requested relief is “divorced from any 14 particular controversy” is inaccurate. Dkt. 14 at 27. Petitioner requests relief concerning records 15 from cases over which this Court has jurisdiction, and Petitioner has identified those records and 16 cases with as much specificity as possible given the Court’s current docketing practices. Dkt. 1 at 17 9-11. Petitioner’s requested relief concerns particular records—docket sheets, applications, and 18 orders—from particular cases—categories (a) through (f) enumerated in the Petition—filed within 19 a particular timeframe, in a particular court—the Western District of Washington. Dkt. 1 at 2820 31. This Court has jurisdiction over all of the cases that are the subject of the Petition. 21 The USAO’s contention that a request to unseal court records must be filed in the particular 22 case in which the records are sealed and must be limited to the records in that particular case is 23 both impossible and unduly burdensome on the Court. Dkt. 14 at 27-28. Under the USAO’s 24 theory, if Petitioner seeks to unseal records from 100 cases in this Court, Petitioner must file 100 25 separate petitions—one in each case. USAO’s position is both unsupported by precedent and DORSEY & WHITNEY LLP REPLY ISO PETITION TO UNSEAL DOCKETS, APPLICATIONS, AND ORDERS - 7 2:17-MC-00145-RSL ________ 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 18 Filed 04/27/18 Page 15 of 32 1 unworkable under this Court’s current docketing practices, which make it impossible for Petitioner 2 to identify even the docket numbers for the cases that are the subject of its request for relief. 3 Petitioner cannot intervene in individual sealed cases whose very existence is unknown to the 4 public. Other courts have expressly or implicitly determined that they have jurisdiction to 5 6 adjudicate the merits of unsealing requests where the petitioner cannot identify by docket number 7 the particular cases containing the sealed records. For example, in two recent cases, the Foreign 8 Intelligence Surveillance Court (FISC) determined that it had jurisdiction and authority to 9 adjudicate the merits of the petitioner’s claims. See In re Release of Court Records, 526 F. Supp. 10 2d at 486-87 (seeking to unseal FISC materials that the petitioner could only identify by general 11 subject matter and date); In re Opinions & Orders of this Court Addressing Bulk Collection of 12 Data Under the Foreign Intelligence Surveillance Act, No. Misc. 13-08, slip op. at 2 (Foreign Intel. 13 Surv. Ct. Nov. 9, 2017) (en banc), aff’d, In re Certification of Question of Law, No. FISCR 18-01, 14 slip op. (FISA Ct. Review March 16, 2018) (seeking to unseal an unknown number of opinions 15 from multiple FISC cases described by subject matter: “opinions evaluating the meaning, scope, 6 16 and constitutionality of Section 215”). In Leopold and Granick, two other district courts considered petitions filed as 17 18 miscellaneous cases seeking to unseal documents from multiple cases within the same district. As 19 the USAO concedes, “neither court explicitly concluded that the petition sought relief that was so 20 broad that it went beyond the judicial power to decide specific cases and controversies.” Dkt. 14 21 at 28. Nor was there any implicit determination that the petitions in those cases should be 22 dismissed on jurisdictional grounds. In both cases, the courts proceeded to consider the merits of 23 the petitions. 24 25 6 http://www.fisc.uscourts.gov/sites/default/files/Misc%201308%20Opinion%20November%209%202017.pdf DORSEY & WHITNEY LLP REPLY ISO PETITION TO UNSEAL DOCKETS, APPLICATIONS, AND ORDERS - 8 2:17-MC-00145-RSL ________ 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 18 Filed 04/27/18 Page 16 of 32 The language from Leopold that the USAO quotes, Dkt. 14 at 29, is from a discussion of 1 2 the scope of the common law right of access held to apply in that case. The quoted language has 3 nothing to do with the court’s jurisdiction to hear the dispute or its Article III power to decide 4 specific cases and controversies. As noted above, the petition in Leopold was not dismissed on 5 jurisdictional grounds. Likewise, the language from Granick that the USAO quotes, Dkt. 14 at 29, is not a 6 7 determination that the court lacks jurisdiction to hear the dispute or that requested relief is beyond 7 8 the court’s Article III power. The petition in Granick has not been dismissed on jurisdictional 9 grounds, and the court in that case “is continuing to look into [the Petitioners’ requested relief], 10 including examining the sealing practices of other district courts . . . .” In re Granick, No. 4:1611 mc-80206-KAW, Dkt. 48 at 1 (Mar. 12, 2018 Order setting status conference for May 3, 2018). None of the USAO’s cited cases holds that a court’s supervisory power over its own records 12 13 must be exercised on an individual case-by-case basis. The courts in those cases were never asked 14 to address that argument, much less where sealed dockets render such individualized sealing 15 requests impossible. In re Sealed Case, 199 F.3d 522 (D.C. Cir. 2000), cited by the USAO, is 16 further distinguishable because (1) it involved a request for public docketing of grand jury 17 proceedings, which are not at issue in the present case, and (2) there was already a specific local 8 18 rule that provided a limited right of access to those grand jury proceedings. Id. at 525. This Court should hold that Petitioner’s requested relief is within the scope of the Court’s 19 20 21 7 Moreover, the quoted statement is neither binding on this Court, nor is it persuasive. The court does not cite any authority or provide any explanation for why it might be unable to unseal records 22 from other cases over which it has jurisdiction, or to make administrative changes to its record23 keeping practices at the district-wide level. 8 The D.C. Circuit acknowledged that “courts have required public docketing in some judicial 24 proceedings,” but held that “the grand jury context is unique. It is because of their unique status 25 that grand jury processes are not amenable to the practices and procedures employed in connection with other judicial proceedings.” Id. at 525-26. DORSEY & WHITNEY LLP REPLY ISO PETITION TO UNSEAL DOCKETS, APPLICATIONS, AND ORDERS - 9 2:17-MC-00145-RSL ________ 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 18 Filed 04/27/18 Page 17 of 32 1 Article III judicial power and then adjudicate the merits of that requested relief after the factual 2 record is further developed. Should the Court disagree, however, Petitioner respectfully requests that the Court permit 3 4 jurisdictional discovery to allow Petitioner to identify the docket numbers of cases containing the 5 sealed records at issue. Cf. Lincoln Benefit Life Ins. Co. v. AEI Life, LLC, 800 F.3d 99, 108 n.37 6 (3d Cir. 2015) (citing Oppenheimer Fund, Inc. v. Sanders, 437 U.S. 340 (1978)). 7 2. 8 The Petition Does Not Request Reversal of Other Judges’ Sealing Orders, Nor Does It Request Unsealing “Untethered to the Facts of a Particular Case.” 9 The USAO’s argument that this Court lacks authority to grant Petitioner’s requested relief 10 because it would require reversing other judges’ sealing orders “untethered to the facts of a 11 particular case” mischaracterizes the Petition and lacks any legal authority. Dkt. 14 at 27-28. 12 Granting Petitioner’s requested relief would not require “reversal of sealing orders entered 13 by other judges of this Court,” Dkt. 14 at 28, nor would it require this Court to hold or find that 14 any earlier sealing order was improper. Under the First Amendment and common law rights of 15 access, records that may have been properly sealed at an earlier point in time must be unsealed 16 once secrecy is no longer necessary. Granting such relief is a new, separate decision that accounts 17 for changed circumstances—primarily the passage of time—and not “reversal” of a previous 18 decision. 19 The Petition acknowledges that the underlying materials were initially sealed as 20 contemplated by statute or because of law enforcement or this Court’s practice to regularly seek 21 or approve such sealing.9 See Dkt. 1 at 5-6. The Petition further acknowledges that even with the 22 passage of time, “the requested materials may contain sensitive information for which there is a 23 legitimate need to maintain secrecy.” Id. at 27. It then explains that “Petitioner’s request includes 24 25 9 As discussed below, Petitioner does not believe any statute or case law requires wholesale sealing of basic docketing information. DORSEY & WHITNEY LLP REPLY ISO PETITION TO UNSEAL DOCKETS, APPLICATIONS, AND ORDERS - 10 2:17-MC-00145-RSL ________ 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 18 Filed 04/27/18 Page 18 of 32 1 a mechanism for the continued sealing of documents for which secrecy is needed to protect an 2 ongoing law enforcement investigation.” Id. at 28. Contrary to the USAO’s argument, the Petition 3 raises no challenge to the initial sealing orders, and the requested relief does not require reversal 4 of those initial sealing decisions. Moreover, because Petitioner’s request allows for continued 5 sealing and/or redaction when justified by a compelling interest, see Dkt. 1 at 28-31, it does not 6 involve “wholesale unsealing . . . untethered to the facts of a particular case,” as the USAO wrongly 7 contends. Dkt. 14 at 27. 8 The question of which judges of this Court should decide requests for continued sealing of 9 certain materials covered by the Petition is premature. At this early stage, all of the materials 10 sought remain sealed and the USAO has not identified any particular cases or records for which 11 there is a compelling interest (e.g., to protect an ongoing law enforcement investigation) sufficient 12 to override the presumption of access under the First Amendment and common law. If the Court 13 grants Petitioner’s requested relief and the USAO makes requests for the continued sealing of 14 records in particular cases, those requests could be decided by any judge of this Court, including, 15 where circumstances permit, the judge who issued the prior order sealing those records. But those 16 considerations are practical, not legal, and they need not be resolved at this stage. 17 The USAO’s reliance on Hartford Courant Co. v. Pellegrino, 380 F.3d 93 (2d Cir. 2004) 18 to support its argument that the Court “should hesitate to hear a claim seeking reversal of sealing 19 orders entered by other judges of this Court” is misplaced. Dkt. 14 at 27-28. That case is easily 20 distinguishable and some aspects of it support Petitioner. In Hartford, the appellate court vacated 21 an order from the district court dismissing a request for sealed court records. Hartford, 380 F.3d 22 at 96-97. Moreover, the plaintiffs in Hartford filed a § 1983 civil action against Connecticut’s 23 Chief Court Administrator and Chief Judge, whose duties and powers were limited by statute and 24 potentially did not encompass the requested relief. Id. at 97. In contrast, the present case is not a 25 DORSEY & WHITNEY LLP REPLY ISO PETITION TO UNSEAL DOCKETS, APPLICATIONS, AND ORDERS - 11 2:17-MC-00145-RSL ________ 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 18 Filed 04/27/18 Page 19 of 32 10 1 civil case and does not request relief from individual defendants who may lack the power to grant 2 it. Although Hartford provides no support for the USAO’s position, the decision is noteworthy 3 for its recognition of a qualified First Amendment right of access to docket sheets. Id. at 93. 4 W.D. Wash. LCR 5(g)(8) also does not prevent Petitioner’s request for relief, as the USAO 5 wrongly suggests. Dkt. 14 at 28 n.20. That rule is permissive rather than restrictive. It provides 6 that “[a] non-party seeking access to a sealed document may intervene in a case for the purpose of 7 filing a motion to unseal the document.” LCR 5(g)(8) (emphasis added). It does not bar other 8 procedures for seeking access to court records, especially where, as here, the sealing practices in 9 this District prevent Petitioner from identifying even the docket numbers for the cases containing 10 the records of interest. 11 12 3. Petitioner Has Standing to Seek the Requested Relief. Petitioner has standing under Article III. Federal Election Comm’n v. Akins, 524 U.S. 11, 13 23-26 (1998). Petitioner’s inability to access the sealed judicial records at issue in this case after 14 asking the Clerk of the Court to provide those records is a concrete, particularized injury directly 15 traceable to the Court’s conduct—its docketing and sealing practices—that is redressable by this 16 Court with a favorable ruling granting Petitioner’s requested relief. 17 Petitioner’s injury is concrete and particularized. As detailed in the Petition, The 18 Stranger’s inability to access the sealed electronic surveillance materials sought here has frustrated 19 its ability to report on law enforcement surveillance and privacy issues, to the detriment of its 20 mission. See Dkt. 1 at 2-4; Dkt. 1-1 (Hsieh Decl.); New York Civil Liberties Union v. New York 21 City Transit Auth., 684 F.3d 286, 295 (2d Cir. 2011) (holding that the organization’s exclusion to 22 certain proceedings, to the detriment of the organization’s own activities, constituted a sufficient 23 10 This fact also renders inapposite the unpublished Alfriend case and the treatise cited on page 28 24 of the USAO’s brief, both of which concern civil cases involving plaintiffs and defendants, not 25 miscellaneous cases involving a petition to the court. Those materials do not state that a petition filed as a miscellaneous case must name a defendant or identify a waiver of sovereign immunity. DORSEY & WHITNEY LLP REPLY ISO PETITION TO UNSEAL DOCKETS, APPLICATIONS, AND ORDERS - 12 2:17-MC-00145-RSL ________ 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 18 Filed 04/27/18 Page 20 of 32 1 injury in fact for Article III). Petitioner’s inability to access the requested judicial records 2 constitutes a well-recognized distinct and palpable injury to its qualified First Amendment and 3 common law rights of access. See Richmond Newspapers. Inc. v. Virginia, 448 U.S. 555 (1980); 4 Globe Newspaper Co. v. Superior Court, 457 U.S. 596, 603 (1982); United States v. Cianfrani, 5 573 F.2d 835, 845 (3d Cir. 1978); Pansy v. Borough of Stroudsburg, 23 F.3d 772, 777 (3d Cir. 6 1994). 7 The USAO’s brief and supporting declarations confirm that the requested judicial records 8 are maintained in a sealed docket that Petitioner cannot access. McCool Decl. ¶¶ 10, 11, 15-18. 9 Further, the Court’s practice of docketing these sealed materials as GJ matters prevents meaningful 10 access to any facts about these records, including how many matters containing such records have 11 been opened since 2011. McCool Decl. ¶¶ 11, 15. 12 Petitioner’s injury is directly traceable to the Court’s docketing and sealing practices 13 related to electronic surveillance records. The causation element of the standing inquiry is also 14 satisfied. Akins, 534 U.S. at 25. There is no dispute that Petitioner’s inability to access the records 15 it seeks results directly from the Court’s docketing and sealing practices, which keep even basic 16 docketing information regarding these matters under seal indefinitely. McCool Decl. ¶¶ 11, 15, 17 16-18; Gorman Decl. ¶¶ 6-9. 18 The Court can redress Petitioner’s injury by granting the requested relief. Petitioner’s 19 claims are redressable by the unsealing of historically sealed judicial records and an order 20 providing a mechanism to ensure similar records created by the Court in the future do not remain 21 sealed indefinitely. Public Citizen v. U.S. Dep’t of Justice, 491 U.S. 440, 450-51 (1989) (holding 22 that plaintiffs had shown that they “might gain significant relief” from their suit seeking records 23 under federal law). Petitioner will “gain significant relief” by being able to access previously 24 sealed judicial records it can then use as part of its reporting. Id. at 451. Those “potential gains 25 are undoubtedly sufficient” to give Petitioner standing. Id. DORSEY & WHITNEY LLP REPLY ISO PETITION TO UNSEAL DOCKETS, APPLICATIONS, AND ORDERS - 13 2:17-MC-00145-RSL ________ 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 18 Filed 04/27/18 Page 21 of 32 1 USAO’s arguments that Petitioner lacks standing are unavailing. Much of the USAO’s 2 attack on standing confuses the merits of the Petition with whether Petitioner has a right to seek 3 relief in the first instance. The USAO argues that the “very breadth of The Stranger’s claims shows 4 that the claims are not grounded in a particularized injury,” and that the claims are not redressable 5 because they are too broad and potentially burdensome. Dkt. 14 at 33-36. Petitioner disputes that 6 characterization of its requested relief, but is open to working with the USAO and the Clerk’s 7 Office to address those concerns, which go to the Petition’s merits, not Petitioner’s standing. 8 Multiple courts hearing First Amendment and common law claims seeking access to sealed 9 judicial records have rejected similar lack of standing arguments as thinly disguised attempts to 10 require litigants to prevail on the merits of their claims at the outset. In Pansy v. Borough of 11 Stroudsburg, the Third Circuit held “in determining whether the Newspapers have standing, we 12 need not determine that the Newspapers will ultimately obtain access to the sought-after Settlement 13 Agreement. We need only find that the Order of Confidentiality being challenged presents an 14 obstacle to the Newspapers’ attempt to obtain access.” 23 F.3d at 777. Indeed, “courts have 15 uniformly found standing to bring a First Amendment right-of-access suit so long as plaintiffs 16 allege an invasion related to judicial proceedings.” In re Opinions & Orders of This Court 17 Addressing Bulk Collection of Data Under the Foreign Intelligence Surveillance Act, No. Misc. 18 13-08, slip op. at 11 (FISA Ct. Nov. 9, 2017) (en banc), aff’d, In re Certification of Question of 19 Law, No. FISCR 18-01, slip op. at 10 (FISA Ct. Review March 16, 2018) (“The flaw in the 20 government’s position is that it attacks the merits of the movant’s claims rather than whether the 21 claim is judicially cognizable.”) (emphasis in original). Not surprisingly, in both Leopold and 22 Granick, the courts proceeded to consider the merits of the petitions without making any explicit 23 or implicit determination that the petitioners in those cases lacked standing. 24 The USAO’s arguments alleging lack of a concrete injury fare no better. First, in arguing 25 that Petitioner has not demonstrated a concrete and particularized injury, the USAO ignores the DORSEY & WHITNEY LLP REPLY ISO PETITION TO UNSEAL DOCKETS, APPLICATIONS, AND ORDERS - 14 2:17-MC-00145-RSL ________ 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 18 Filed 04/27/18 Page 22 of 32 1 facts in the Petition and supporting declarations demonstrating Petitioner’s specific interest in 2 accessing these records and how its inability to access them has hindered Petitioner from reporting 3 on issues critical to its mission of government transparency and accountability. See Dkt. 1 at 2-4; 4 Dkt. 1-1 (Hsieh Decl.). 5 Second, the Supreme Court has twice rejected the argument that because Petitioner invokes 6 rights that are enjoyed by the broader public, Petitioner has failed to demonstrate anything more 7 than an abstract and generalized grievance. In Public Citizen, the defendants argued that because 8 the plaintiff was invoking broad public statutory rights of access to meetings and records of certain 9 committees under the Federal Advisory Committee Act (FACA), 5 U.S.C. app. 2, it lacked 10 standing. 491 U.S. at 449. The Supreme Court disagreed: “The fact that other citizens or groups 11 of citizens might make the same complaint after unsuccessfully demanding disclosure under 12 FACA does not lessen appellants’ asserted injury.” Id. at 449-50. In Akins, the Federal Elections 13 Commission argued that the plaintiffs were alleging abstract injuries and lacked standing because 14 their complaint sought to vindicate rights Congress granted to the broader public. 524 U.S. at 2015 24. The Supreme Court held that the plaintiffs’ injury was “sufficiently concrete and specific such 16 that the fact that it is widely shared does not deprive Congress of [the] constitutional power to 17 authorize its vindication in the federal courts.” Id. at 25. 18 Although other members of the public also enjoy First Amendment and common law rights 19 of access to judicial records, Petitioner’s actual request for access was denied. Dkt. 1 at 2-4, 9-11. 20 This denial of access is neither hypothetical nor abstract. When a party alleges a “‘distinct and 21 palpable injury’” to itself, “standing should not be denied ‘even if it is an injury shared by a large 22 class of other possible litigants.’” Cianfrani, 573 F.2d at 845 (quoting Warth v. Seldin, 422 U.S. 23 490, 501 (1975). 24 The USAO’s further argument that Petitioner lacks standing because, by admitting that 25 some requested records may remain under seal, its claims are not redressable, also fails. Dkt. 14 DORSEY & WHITNEY LLP REPLY ISO PETITION TO UNSEAL DOCKETS, APPLICATIONS, AND ORDERS - 15 2:17-MC-00145-RSL ________ 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 18 Filed 04/27/18 Page 23 of 32 1 at 33. That overriding interests may require continued sealing of particular records does not 2 extinguish redressability. In Public Citizen, the plaintiffs acknowledged that some meetings held 3 by the committee it believed had violated FACA could have been properly closed from the public, 4 and that some documents may have been properly withheld from public disclosure, “[b]ut they by 5 no means concede[d] . . . FACA licenses denying them access to all meetings and papers, or that 6 it excuse[d] noncompliance with FACA’s other provisions.” 491 U.S. at 450 (emphasis in 7 original). The same is true here. Petitioner’s acknowledgment that some of the requested records 8 should remain sealed where a compelling interest justifies the continued sealing of that information 9 does not foreclose unsealing other requested records for which secrecy is no longer necessary. 10 Petitioner’s claims are thus redressable by the Court. 11 C. 12 Petitioner Has First Amendment and Common Law Rights to Access Basic Docketing Information Regarding Electronic Surveillance Cases Filed in this Court. 13 As explained above, The Stranger is open to an order requiring the parties to meet and 14 confer. However, if the Court wants to reach the merits of the case now, The Stranger must prevail. 15 Petitioner has demonstrated that it has First Amendment and common law rights of access 16 to the docket sheets for the electronic surveillance cases identified in the Petition. Dkt. 1 at 15-19. 17 Not only is there a long history of access to court dockets “[s]ince the first years of the Republic,” 18 United States v. Mendoza, 698 F.3d 1303, 1306-07 (10th Cir. 2012), but also there is a compelling 19 public interest in maintaining open docket sheets because they “enhance[] the appearance of 20 fairness” within the judicial system and “enlighten[] the public” about procedures used by courts 21 and law enforcement. Doe v. Public Citizen, 749 F.3d 246, 268 (4th Cir. 2014). Docket sheets 22 “provide a kind of index to judicial proceedings and documents, and endow the public and press 23 with the capacity to exercise their rights guaranteed by the First Amendment.” Hartford, 380 F.3d 24 at 93. This is why courts have held that maintaining a dual docketing system—one secret, one 25 public—is unconstitutional. United States v. Valenti, 987 F.2d 708, 715 (11th Cir. 1993); United DORSEY & WHITNEY LLP REPLY ISO PETITION TO UNSEAL DOCKETS, APPLICATIONS, AND ORDERS - 16 2:17-MC-00145-RSL ________ 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 18 Filed 04/27/18 Page 24 of 32 1 States v. Ochoa-Vasquez, 428 F.3d 1015, 1029 (11th Cir. 2005). 2 The USAO’s attempt to sidestep this well-settled law by arguing that the First Amendment 3 and common law rights of access to docket sheets derives from access to the underlying materials 4 (e.g., applications and orders) referenced in those docket sheets must be rejected. Dkt. 14 at 545 57. No cases support this contention; the USAO instead relies on cases that support sealing grand 6 jury proceedings and grand jury dockets to argue there is no right of access to any dockets in ex 7 parte criminal proceedings. Id. at 54-55. But Petitioner is not seeking access to dockets for actual 8 grand jury proceedings, so those cases are inapposite. Moreover, the lack of a jury or other public 9 proceedings is often a factor militating in favor of finding access to dockets and proceedings in 10 criminal cases. See Press-Enterprises Co. v. Superior Court, 478 U.S. 1, 2 (1986) (“[t]he absence 11 of a jury makes the importance of public access even more significant.”). The USAO’s reliance 12 on In re New York Times Co., 577 F.3d 401 (2d Cir. 2009) is misplaced, as that case dealt with 13 access to the Wiretap Act materials and not to basic docketing information. And as explained 14 below, the Ninth Circuit has not ruled on whether the First Amendment or common law right of 15 access applies to such materials. 16 The Court should also reject the USAO’s general assertion that it is entitled to secrecy over 17 these matters, including the docket sheets. Dkt. 14 at 54, 59. “A blind acceptance by the courts 18 of the government’s insistence on the need for secrecy, without notice to others, without argument, 19 and without a statement of reasons, would impermissibly compromise the independence of the 20 judiciary and open the door to possible abuse.” In re Washington Post Co., 807 F.2d 383, 391–92 21 (4th Cir. 1986); see also Detroit Free Press v. Ashcroft, 303 F.3d 681, 683 (6th Cir. 2002) (“When 22 government begins closing doors, it selectively controls information rightfully belonging to the 23 people.”). 24 The USAO is also incorrect in arguing that statutes authorizing the sealing of certain 25 surveillance materials sought here support the sealing of docket sheets. Dkt. 14 at 43. The Stored DORSEY & WHITNEY LLP REPLY ISO PETITION TO UNSEAL DOCKETS, APPLICATIONS, AND ORDERS - 17 2:17-MC-00145-RSL ________ 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 18 Filed 04/27/18 Page 25 of 32 1 Communications Act (18 U.S.C. § 2703) and the All Writs Act (28 U.S.C. § 1651) contain no 2 provisions requiring courts to seal docket sheets, or even the underlying applications and orders. 3 The USAO acknowledges as much elsewhere in its brief. Dkt. 14 at 10-11. The Pen Register Trap 4 and Trace Act and the Wiretap Act include sealing provisions, see 18 U.S.C. § 3123(d) and 18 5 U.S.C. § 2518(8)(b), but those provisions do not require sealing of docket sheets and therefore 6 provide no support for the USAO’s position that docket sheets should remain sealed. Petitioner’s 7 right of access to docket sheets is governed by the First Amendment and the common law, not by 8 statute. 9 10 11 D. Petitioner Has First Amendment and Common Law Rights to Access the Underlying Applications and Orders in Electronic Surveillance Cases Filed in this Court, Once Secrecy Is No Longer Necessary. 1. 12 Petitioner has a First Amendment Right of Access to the Requested Judicial Records. 13 The Petition demonstrated that either history or logic, or sometimes both, supports the First 14 Amendment right of access to the electronic surveillance applications and orders sought here. Dkt. 15 1 at 19-28. In arguing this right does not apply, the USAO primarily attacks the “experience” 16 prong of the test to argue that the Petition fails because there is no tradition of access to these 17 materials. Dkt. 14 at 37-40, 43-46. Petitioner disputes the USAO’s characterization regarding the 18 tradition of access. But in any event, the Petition demonstrated that in the Ninth Circuit, “logic 19 alone, even without experience, may be enough to establish the right” of access. In re Copley 20 Press, 518 F.3d 1022, 1026 (9th Cir. 2008). 21 In arguing there is no tradition of access to the materials sought by the Petition, the USAO 22 mischaracterizes the Stored Communications Act to imply that it requires sealing of SCA 23 materials. See Dkt. 14 at 45-46 (“[I]mplicit in [§ 2705(b)] is the understanding that the application 24 and order are not publicly available . . . .”). Although the Pen Register Act authorizes courts to 25 seal materials, there is no similar provision in the SCA. The SCA does not require sealing by DORSEY & WHITNEY LLP REPLY ISO PETITION TO UNSEAL DOCKETS, APPLICATIONS, AND ORDERS - 18 2:17-MC-00145-RSL ________ 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 18 Filed 04/27/18 Page 26 of 32 1 default, and the nondisclosure orders authorized by 18 U.S.C. § 2705 are not mandatory, as they 2 are supposed to issue only when there is “reason to believe” it is necessary to preserve a 3 government interest. 18 U.S.C. § 2705(b). 4 There is a history of access to search warrant materials once secrecy is no longer necessary; 5 experience thus supports Petitioner’s First Amendment right to access SCA warrants and related 6 materials. In re Search Warrant for Secretarial Area Outside Office of Gunn, 855 F.2d 569, 573 7 (8th Cir. 1988). The “clear trend” is for courts to find this history of access. United States v. 8 Loughner, 769 F. Supp. 2d 1188, 1193 (D. Ariz. 2011). 9 This has always been Petitioner’s position, and Petitioner has not conceded this point, as 10 the USAO wrongly suggests. Dkt 14 at 44. To the extent the Petition “concedes” no such history 11 exists for SCA materials, it was referring specifically to non-content/non-warrant materials that 12 can be obtained under other provisions of the SCA. Compare Dkt. 1 at 19 (history of access to 13 warrant materials) with Dkt. 1 at 22 (no history for SCA). 14 Regarding All Writs Act materials, there is an unbroken history of access to court orders, 15 including supplemental writs. United States v. Ressam, 221 F. Supp. 2d 1252, 1262 (W.D. Wash. 16 2002); Pepsico v. Redmond, 46 F.3d 29, 31 (7th Cir. 1995). The USAO incorrectly states that 17 Petitioner conceded that its claim to AWA orders is “derivative” of its claims for records relating 18 to other types of process. Dkt. 14 at 46. Petitioner noted that the logic prong of its claim to right 19 of access to AWA orders is bolstered by its right to underlying materials, but its claim to AWA 20 orders derives from the independent right of access to court orders. 21 The USAO also relies on Leopold to argue there is no First Amendment right of access to 22 the requested materials. Dkt. 14 at 48. But that case and the law it relies on are unavailing on this 23 issue given the different legal standards in the Ninth Circuit. Whereas the D.C. Circuit requires 24 parties seeking to establish a First Amendment right of access to demonstrate both logic and 25 experience, the test in the Ninth Circuit is disjunctive. Copley Press, 518 F.3d at 1026. DORSEY & WHITNEY LLP REPLY ISO PETITION TO UNSEAL DOCKETS, APPLICATIONS, AND ORDERS - 19 2:17-MC-00145-RSL ________ 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 18 Filed 04/27/18 Page 27 of 32 1 The logic prong also supports a First Amendment right of access because public access 2 would have a significant positive role in the surveillance process by providing oversight and 3 accountability for law enforcement actions and by increasing confidence in the role that judges 4 play within the criminal process. See In re Application and Affidavit for a Search Warrant, 923 5 F.2d 324, 331 (4th Cir. 1991) (The public has an interest in “law enforcement systems and how 6 well they work.”); Loughner, 769 F. Supp. 2d at 1194 (emphasizing the courts role in maintaining 7 proper procedure during criminal investigations). The USAO’s arguments to the contrary must 8 fail. The USAO contends that, because the surveillance orders at issue here provide less notice to 9 a target than traditional warrants, they are less necessary for public review. Dkt. 14 at 48. But the 10 lack of notice the USAO identifies exacerbates the secrecy surrounding these materials, 11 demonstrating why greater transparency is needed. 12 The USAO’s attempt to distinguish traditional search warrants from the records sought 13 here also must be rejected. Dkt. 14 at 48. The USAO emphasizes that traditional search warrants 14 provide notice to targets, but it does not explain why lack of notice to targets should prevent public 15 access to redacted records sought here. Moreover, notice of a search warrant may be delayed in 16 some cases, supporting Petitioner’s contention that these materials can be released after the need 17 for secrecy has passed. See 18 U.S.C. 3103(a) (providing authority for law enforcement to seek a 18 court order to delay notice of execution of a search warrant); Richards v. Wisconsin, 520 U.S. 385 19 (1997) (upholding the constitutionality of law enforcement’s use of no-knock warrants). 20 The USAO mistakenly relies on Times Mirror Co. v. United States to assert that Petitioner 21 does not have a right to access surveillance applications. See Dkt. 14 at 50; Times Mirror Co. v. 22 United States, 873 F.2d 1210, 1213-14 (9th Cir. 1989) (finding no right of access where the logic 23 in favor of openness was outweighed by the need for secrecy before an investigation has closed). 24 But that case does not control here because Petitioner is not requesting materials in ongoing 25 investigations; rather, Petitioner seeks records in cases where secrecy is no longer necessary. DORSEY & WHITNEY LLP REPLY ISO PETITION TO UNSEAL DOCKETS, APPLICATIONS, AND ORDERS - 20 2:17-MC-00145-RSL ________ 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 18 Filed 04/27/18 Page 28 of 32 1 Courts have found a diminished need for sealing warrant materials after an investigation has 2 concluded and have found a First Amendment right of access for post-investigatory warrants. See 3 United States v. Bus. of the Custer Battlefield Museum, 658 F.3d 1188, 1194 (9th Cir. 2011) 4 (declining to extend Times Mirror); Dkt. 1 at 28-29. 5 The USAO also mistakenly relies on United States v. Applebaum to argue that Petitioner 6 cannot satisfy the logic requirement in the right to access Stored Communications Act records. 7 But the central holding of that case does not apply here. 707 F.3d 283 (4th Cir. 2013). Unlike in 8 Applebaum, Petitioner is not seeking records of open investigations, and its Petition expressly 9 contemplates that such records can remain sealed. Compare Dkt. 14 at 46-47 with Dkt. 1 at 31. 10 Applebaum does not address Petitioner’s contention that there is a diminished need for secrecy 11 after an investigation results in an indictment, as well as for post-investigatory records for which 12 no indictment has issued. Applebaum, 707 F.3d at 290-91. Additionally, SCA § 2703(d) orders 13 are judicial records, Applebaum, 707 F.3d at 290-91, and they serve a similar role as search 14 warrants in providing judicial oversight over law enforcement investigations. There is no logical 15 reason to treat § 2703(d) orders differently once an investigation has concluded. 16 Although there may be a privacy interest in pre-indictment records, a general privacy 17 interest is not strong enough to overcome the First Amendment right of public access. See Globe 18 Newspaper Co. v. Superior Court, 457 U.S. 596, 607-09 (1982) (holding that a state’s compelling 19 interest in protecting minor victims did not justify mandatory closure of proceedings); Loughner, 20 769 F. Supp. 2d at 1195 (General “privacy and reputational concerns typically don’t provide 21 sufficient reason to overcome a qualified First Amendment right of access.”); In re New York 22 Times, 585 F. Supp. 2d 83, 93 n.14 (D.D.C. 2008) (“[C]ourts that have identified legally cognizable 23 privacy interests have done so with more specificity than a blanket statement that one has a right 24 to get on with his life.”); Dkt. 1 at 36-37. 25 This is particularly true when there are less restrictive means to address privacy concerns DORSEY & WHITNEY LLP REPLY ISO PETITION TO UNSEAL DOCKETS, APPLICATIONS, AND ORDERS - 21 2:17-MC-00145-RSL ________ 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 18 Filed 04/27/18 Page 29 of 32 1 than wholesale sealing, such as by redacting names and other personal information. The USAO 2 relies on In re WP Co., LLC to argue that privacy interests can overcome the public’s interest in 3 access, but that case is not in keeping with Ninth Circuit precedent because the case places too 4 much weight on the experiential prong of the access test. 201 F. Supp. 3d 109 (D.D.C. 2016). 5 Moreover, unsealing these materials with redactions will not harm the privacy of unindicted 6 individuals, Dkt. 1 at 36-37, nor will unsealing a surveillance order equivocate to an accusation of 7 criminal wrongdoing. Dkt. 14 at 48. It is also premature for the USAO to contend that there is no way to determine whether an 8 9 investigation is ongoing or that doing so will be unduly burdensome. Dkt. 14 at 49. In Leopold, 10 on which the USAO relies to argue that the burden is too high to grant access to records, the USAO 11 provided the petitioners and the court with far more information about the scope of the records 12 requested, and also provided specific details about the amount of time and resources needed to 13 identify, review, and disclose the materials at issue. Leopold, 2018 U.S. Dist. LEXIS 30211, at 14 *28-29, 75-80. No such record has been developed in this case. Further, Leopold is inapplicable 15 in this regard because the court did not apply the First Amendment right of access test, but instead 16 weighed burden as a new factor in the court’s analysis regarding the common law right of access. 11 17 Id. Further, the USAO identifies no case, and Petitioner is not aware of any, in which burden by 18 itself served as a basis to override a First Amendment right of access. Finally, the Ninth Circuit has not addressed the extent to which the First Amendment right 19 20 of access applies to Wiretap Materials, including whether the public right of access can constitute 21 “good cause” for unsealing post-investigatory materials. United States v. Chow, No. 14-cr-00196 22 (N.D. Cal. Aug. 28, 2015). The USAO is incorrect in asserting there is no First Amendment or 23 common law right of access to these materials in the Ninth Circuit. Dkt. 14. at 39-42. 24 Petitioners in Leopold have sought reconsideration of this and other aspects of the court’s 25 decision. In re Leopold, U.S. Dist. Ct., Dist. of Columbia, No. 13-mc-00712 (BAH), Dkt. 55 at 18-25 (Motion for Reconsideration, March 23, 2018). 11 DORSEY & WHITNEY LLP REPLY ISO PETITION TO UNSEAL DOCKETS, APPLICATIONS, AND ORDERS - 22 2:17-MC-00145-RSL ________ 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 18 Filed 04/27/18 Page 30 of 32 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 2. Petitioner has a Common Law Right of Access to the Requested Judicial Records. The Petition demonstrated that there is well-established precedent applying the common law right of access to the types of judicial records sought here. “It is commonsensical that judicially authored or created documents are judicial records.” Applebaum, 707 F.3d at 290; see also Dkt. 1 at 29, 32, 35. Even in Leopold, the court held that the Pen Register and Stored Communications Act records were subject to a qualified common law right of access. 2018 U.S. Dist. LEXIS 30211, at *73. Further, under Ninth Circuit precedent there is a strong presumption that Petitioner is entitled to the requested records and that only a “narrow range” of documents are exempt. Kamakana v. City & Cty. of Honolulu, 447 F.3d 1172, 1178 (9th Cir. 2006). The USAO’s brief ignores these cases. Moreover, it would be premature to hold, as requested by the USAO, that the burden associated with unsealing the requested records outweighs the common law right of access to those records. The USAO has not expressed the burden of unsealing with sufficient particularity. In Leopold, the USAO identified the approximate number of matters at issue and unsealed certain sealed records to better understand the burden associated with the petitioner’s requested relief. Leopold, 2018 U.S. Dist. LEXIS 30211, at *29, 75-80. The USAO has not yet attempted the same study in this case, and the Court should not rely on “hypothesis or conjecture” to seal records. Hagestad v. Tragesser, 49 F.3d 1430, 1434 (9th Cir. 1995). If the Court is concerned about the burden of this specific unsealing request, the Court should allow the parties to further develop the factual record regarding the burden associated with the requested relief, so the Court can “conscientiously balance” that burden with the public’s common law right of access to the judicial records at issue. Foltz v. State Farm Mut. Auto. Ins. Co., 331 F.3d 1122, 1135 (9th Cir. 2003); Custer, 658 F.3d at 1195. III. CONCLUSION Petitioner respectfully requests that this Court order the USAO and the Clerk of the Court DORSEY & WHITNEY LLP REPLY ISO PETITION TO UNSEAL DOCKETS, APPLICATIONS, AND ORDERS - 23 2:17-MC-00145-RSL ________ 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 18 Filed 04/27/18 Page 31 of 32 1 to meet and confer with Petitioner and that the Court set a status conference to update it on the 2 progress of those discussions. The Court has jurisdiction and the authority to grant Petitioner’s 3 requested relief and it need not reach the merits. Yet should the Court decide the merits, Petitioner 4 is entitled to the relief it seeks. 5 Dated: April 27, 2018 Respectfully submitted, 6 By 7 8 9 10 11 12 13 14 /s/ Geoffrey M. Godfrey Geoffrey M. Godfrey (SBN 46876) godfrey.geoff@dorsey.com Nathan T. Alexander (SBN 37040) alexander.nathan@dorsey.com 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 Aaron Mackey (pro hac vice) amackey@eff.org ELECTRONIC FRONTIER FOUNDATION 815 Eddy Street San Francisco, CA 94109 Telephone: (415) 436-9333 15 16 17 18 Attorneys for Petitioner INDEX NEWSPAPERS LLC D/B/A THE STRANGER 19 20 21 22 23 24 25 DORSEY & WHITNEY LLP REPLY ISO PETITION TO UNSEAL DOCKETS, APPLICATIONS, AND ORDERS - 24 2:17-MC-00145-RSL ________ 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 18 Filed 04/27/18 Page 32 of 32 CERTIFICATE OF SERVICE 1 2 I hereby certify that on April 27, 2018, I electronically filed the foregoing with the Clerk 3 of the Court for the United States District Court for the Western District of Washington using the 4 CM/ECF system which will send notification of such filing to the attorney(s) of record for the 5 U.S. Government. 6 Dated: April 27, 2018. 7 __/s/ Gregore J. Sambor___ Gregore J. Sambor Senior IP Litigation Paralegal DORSEY & WHITNEY LLP 701 Fifth Avenue, Suite 6100 Seattle, WA 98104 sambor.gregore@dorsey.com 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 DORSEY & WHITNEY LLP REPLY ISO PETITION TO UNSEAL DOCKETS, APPLICATIONS, AND ORDERS - 25 2:17-MC-00145-RSL ________ COLUMBIA CENTER 701 FIFTH AVENUE, SUITE 6100 SEATTLE, WA 98104-7043 PHONE: (206) 903-8800 FAX: (206) 903-8820