UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

IN THE MATTER OF THE APPLICATION OF JASON LEOPOLD TO UNSEAL Misc. Action No. 13-mc-00712 CERTAIN ELECTRONIC SURVEILLANCE APPLICATIONS AND ORDERS. Chief Judge Beryl A. Howell

MEMORANDUM OPINION

Invoking both the First Amendment and common law rights of access to judicial records,

Jason Leopold, an investigative journalist, and the Reporters Committee for Freedom of the

Press initially petitioned the Court to unseal almost twenty years of sealed government

applications, and related orders, to obtain information about, and the contents of, electronic

communications in criminal investigations now closed. See generally Pet. Unseal Records

(“Pet.”), ECF No. 1; Appl. to Unseal and for Other Appropriate Relief (“Intervenor’s Pet.”), ECF

No. 18. These petitions commenced a constructive effort among the petitioners, U.S. Attorney’s

Office for the District of Columbia (“USAO”), and Clerk of this Court to consider mechanisms

for allowing greater transparency in the judicial review process for such applications and orders,

while maintaining the secrecy of information implicating both legitimate individual privacy and

law enforcement interests, and navigating the practical difficulties posed by evolving internal

technological tools and administrative practices within the USAO and the Clerk’s Office for

processing and docketing these records. The parties’ commendable willingness to work together,

in good faith, to identify areas of common ground and compromise has substantially narrowed

the legal dispute and resulted in a largely collaborative rather than an acrimonious litigation. For

the reasons set out below, the petitions are granted in part and denied in part. 1 I. BACKGROUND

This is not the only court with a significant volume of sealed government surveillance

records on secret dockets that remain inaccessible to the public.1 The progress of this litigation

is outlined in some detail because the lessons learned and issues confronted inform the relief

available, and may be instructive to other courts confronting similar issues.

Jason Leopold, a journalist currently employed by BuzzFeed News, filed a petition in

July 2013 to unseal government applications and related orders for the following types of

statutorily authorized surveillance: “pen registers, trap and trace devices [collectively “PR/TT

devices”], tracking devices, cell site location, stored email, telephone logs, and customer account

records from electronic service providers, except for those which relate to an ongoing

investigation.” Pet. at 1; see also Gov’t’s Resp. to Pet. (“Gov’t’s Resp.”) at 1, ECF No. 10.2

These records, along with the docket numbers assigned by the Clerk’s Office and docket sheets

identifying all documents filed on each docket for such matters, typically remain under seal

indefinitely. In view of this fact, Leopold also sought a list of all docket numbers, in closed

investigations, associated with government applications and orders relating to PR/TT devices and

the compelled disclosure of electronically stored communications and records, pursuant to the

Stored Communications Act,

et seq. (“SCA”). Pet. at 4. In addition to this

retrospective relief in the form of unsealing docket numbers and PR/TT and SCA materials in

1 This case is not the first occasion this Court has taken steps to facilitate greater transparency regarding sealed material. See, e.g., Memorandum & Order, In re Search Warrant for E-Mail Account [redacted] Maintained on Computer Servers Operated by Google, Inc., Headquartered At 1600 Amphitheatre Parkway, Mountain View, Calif.,

(D.D.C. May 22, 2013) (Lamberth, C.J.) (announcing creation of a new page on the Court’s website “where all search warrants and arrest warrants will be publicly available after execution, unless a separate sealing order is entered to redact all or portions when the government makes the [requisite] showing . . . .”). 2 Leopold was employed by Vice News and was a regulator contributor to Al Jazeera English at the time he filed his petition. Pet. at 1–2; Pet’rs’ Suppl. Mem. Supp. Pet. (“Pet’rs’ Mem.”) at 5, ECF No. 47. 2 closed criminal investigations, Leopold requested prospective relief in the form of a presumptive

180-day expiration date for all sealing or non-disclosure orders for such materials, extendable for

ongoing investigations or in exceptional circumstances. Id. at 5.

In response to the petition, the USAO acknowledged, in December 2013, “that

applications and orders relating to electronic surveillance methods need not necessarily be

permanently sealed.” Gov’t’s Resp. at 2. Nonetheless, asserting that the requested relief was

overbroad, the USAO identified several obstacles to the wholesale unsealing and disclosure that

Leopold sought. Id. at 2–3. First, the USAO could not provide a complete list of docket numbers

associated with all PR/TT and SCA applications and/or orders filed in this Court because other

components of the U.S. Department of Justice (“DOJ”), applied for and obtained such

surveillance orders, without USAO involvement. Id. at 2. Second, limiting the requested

unsealing to “closed” investigations posed administrative burdens in (1) identifying the

appropriate USAO personnel and law enforcement officials to verify the status of the

investigation, and, (2) where an aspect of an investigation was closed, assessing whether the

need for secrecy remained due to concerns over witness safety, national security, or jeopardizing

ongoing investigations growing out of closed investigations. Id. at 2–3. Third, the USAO

criticized the petition’s suggested protocol of a presumptive 180-day expiration date for sealing

and non-disclosure orders as “arbitrary on its face,” as that presumptive limit gave short shrift to

the interests justifying the initial sealing and unduly cabined judicial discretion, in conflict with

governing statutes. Id. at 3.

While taking no position on whether the First Amendment or common law established a

right of access to the materials at issue, the USAO pointed out, correctly, that “the decision

whether, and if so how, to establish a protocol to identify more accurately, track, and ultimately

3 terminate sealing orders is a matter that falls within the administrative responsibility of this

Court,” and offered, as an institutional litigant, to “assist the Court in whatever manner the Court

might deem appropriate towards the aim of formulating appropriate guidelines” in this area. Id.

at 2–3 nn.2–3.

Nothing more transpired in this matter for over two years, until the matter was reassigned

to the undersigned in March 2016.3 At subsequent status hearings, Leopold’s counsel clarified

that the petition sought no personally identifying information concerning investigative targets,

Hr’g Tr. (“May 2016 Tr.”) at 9:5–25, 10:1–21 (May 4, 2016), ECF No. 20; Hr’g Tr. (“June 2016

Tr.”) at 9:14–17 (June 24, 2016), ECF No. 21, and agreed, at the Court’s suggestion, to limit the

scope of requested relief to only those PR/TT and SCA applications filed by the USAO, June

2016 Tr. at 12:2–5, 9.

The USAO provided additional detail on the practical challenges presented by the

petition, some of which, ironically, were exacerbated by the limitations agreed to by Leopold. In

particular, determining whether the USAO or a different DOJ component had filed a PR/TT or

SCA application would be challenging, as the USAO maintained no lists of docket numbers for

PR/TT and SCA matters initiated by USAO prosecutors, and because the USAO’s internal

tracking system for criminal investigations did not correspond to the Miscellaneous (“MC”)

docket numbers assigned by the Clerk’s office. June 2016 Tr. at 12:15–22.4 Moreover, even the

3 During this period, Leopold moved for the appointment of a special master, Leopold’s Mot. Appoint. Special Master, ECF No. 11, which motion was withdrawn in June 2016, see Hr’g Tr. (“June 2016 Tr.”) at 5:3 (June 24, 2016), ECF No. 21. 4 Until January, 2018, the Clerk’s Office used four case types to docket new matters: civil cases were then and still are docketed with a “CV” case number; criminal cases initiated by indictment or information were then and still are docketed with a “CR” case number; search warrants filed pursuant to Federal Rule 41 of Criminal Procedure, criminal complaints and associated arrest warrants, misdemeanor informations, and financial affidavits filed pursuant to the Criminal Justice Act, were docketed with a “Magistrate Judge” or “MJ” matter number; and various types of civil, bankruptcy, grand jury and criminal investigative matters were docketed with a 4 USAO lacked access to the sealed MC dockets and, thus, could not determine which PR/TT and

SCA applications were filed by the USAO or a different DOJ component or the status, as open or

closed, of the investigations in connection with which those applications were filed. Id. at

12:23–25, 13:1–5.

While acknowledging that the petition was “quite broad,” id. at 5:24, Leopold’s counsel

explained that the relief sought would reveal changes over time in the types of surveillance

requests the government made pursuant to particular statutory authorities, as well as the

government’s evolving legal arguments in support of particular surveillance applications, citing,

as an example, the government’s argument that

(d) allowed the government to

obtain historical cell cite data. May 2016 Tr. at 12:7–15; see also June 2016 Tr. at 6:2–3

(describing petition’s “overall goal” as enabling the public “to understand the use of and

justification for [PR/TT] and [§] 2703(d) orders.”). Similarly to the USAO, Leopold expressed

willingness “to work with the Court to narrow it down to the things that we’re specifically

interested in.” June 2016 Tr. at 5:24–25, 6:1.

The Court directed the parties to propose a future course and, given the breadth of relief

“Miscellaneous” or “MC” matter number. See, e.g., LCvRs 40.3(a)(1) n.1 & 57.10(a)(1) n.3 (describing “miscellaneous cases” to include “(a) actions to perpetuate testimony as in Rule 27, Federal Rules of Civil Procedure; (b) actions to enforce administrative subpoenas and summonses; (c) proceedings ancillary to an action pending in another district; (d) supplementary proceedings brought in aid of execution; (e) motions for return of property in criminal proceedings; and (f) requests for judicial assistance.”); LCvR 40.3(c)(2)(iii) (“[A]ny motion relating to a bankruptcy case or proceeding (including . . . any motion for a writ of mandamus or prohibition) (which motion shall be assigned a miscellaneous case number)”); LCrR 6.1 (“A motion or application filed in connection with a grand jury subpoena or other matter occurring before a grand jury, all other papers filed in support of or in opposition to such a motion or application, and all orders entered by the Court in connection therewith, shall be filed under seal” and “assigned a Miscellaneous case number.”); LCrR 17.2 (“When any papers are filed by a non-party opposing closure [in a criminal case], the matter shall be assigned a Miscellaneous docket number”); LCrR 57.6 (“Any news organization or other interested person, other than a party or a subpoenaed witness, who seeks relief relating to any aspect of the proceedings in a criminal case shall file an application for such relief in the Miscellaneous Docket of the Court.”); DCt.LBR 5011-1(d) (assigning MC number to emergency bankruptcy matters). In January, 2018, the Clerk’s Office adopted new case types to designate grand jury and criminal investigative matters, as described in more detail infra Part II.D. 5 the petitioners sought, to refine the scope of Leopold’s request to “a manageable time period

where we have records that are electronic and so more easily accessible to review and to track.”

Id. at 18:13–15. 5 In addition, the parties were directed to identify any “information the parties

would need from the Court to help facilitate moving forward.” Id. at 18:16–18. The Reporters

Committee for Freedom of the Press moved to intervene soon thereafter, see Reporters Comm.’s

Unopposed Mot. to Intervene (“Mot. Intervene”), ECF No. 16, which motion was granted,

Minute Order, dated Aug. 18, 2016.6

5 The Case Management/Electronic Case Filing system (“CM/ECF system”) is an electronic filing system that allows attorneys “to open new civil cases, and file civil, criminal, and miscellaneous pleadings (including some sealed documents) electronically right from their office.” Electronic Case Filing & Court Records, U.S. DISTRICT COURT, DIST. OF COLUMBIA, http://www.dcd.uscourts.gov/ECFCR (last visited Feb. 20, 2018). CM/ECF is used across the federal judiciary to give “the courts a way to easily manage these files electronically,” Electronic Filing (CM/ECF), U.S. COURTS, http://www.uscourts.gov/courtrecords/electronic-filing-cmecf (last visited Feb. 20, 2018), and to provide attorneys and the public “[c]ase information, including the docket sheet and the filed documents, . . . from locations other than the courthouse,” FAQs: Case Management / Electronic Case Files (CM/ECF), U.S. COURTS, http://www.uscourts.gov/courtrecords/electronic-filing-cmecf/faqs-case-management-electronic-case-files- cmecf (last visited Feb. 20, 2018). The Administrative Office of the U.S. Courts first developed CM/ECF in 1996 “for use in the [U.S. District Court for the] Northern District of Ohio to help the court deal with an onslaught of asbestos litigation and the massive amount of paperwork associated with it.” Tanya White Cromwell, Electronic Case Filing Saves Space, Time, Improves Access to Documents, KAN. CITY BUS. J. (May 2, 2003, 11:00 PM CST), https://www.bizjournals.com/kansascity/stories/2003/03/03/focus3.html. After pilot programs were conducted in a handful of district courts, the system began to be rolled out nationwide to federal district courts in 2001 and 2002, soon followed by federal appellate courts in 2005. Daniel T. Fenske, E-Filing in Federal Courts: How to Avoid Common Mistakes, 17 PRETRIAL PRAC. & DISCOVERY 4, 4 (2009). According to information obtained from the Clerk’s Office, this Court implemented CM/ECF for use in public civil cases in 2003, and in public criminal cases in 2005. Today, all federal district, bankruptcy, and appellate courts, except the U.S. Supreme Court, use the CM/ECF system. ADMIN. OFFICE OF THE U.S. COURTS, NEXT GENERATION OF CM/ECF: ADDITIONAL FUNCTIONAL REQUIREMENTS GROUP FINAL REPORT 1 (Feb. 27, 2012). The Clerk’s Office has further advised that this Court began to use CM/ECF for the docketing in sealed cases of sealed government applications and orders in criminal investigative matters in 2008. New functionality added to the CM/ECF system allowed sealed documents to be docketed electronically on CM/ECF by the Clerk’s Office on otherwise public civil dockets in 2009, and on public criminal dockets in 2011. In November 2013, the CM/ECF system in this Court was further enhanced to allow the electronic docketing by attorneys of sealed documents in otherwise public civil and criminal cases, with access to the sealed docket entries limited to court personnel and designated parties. 6 The Reporters Committee is “an unincorporated nonprofit association of reporters and editors dedicated to safeguarding the First Amendment rights and freedom of information interests of the news media and public.” Intervenor’s Pet. ¶ 2. The Reporters Committee sought (1) retrospectively, to unseal applications, supporting materials, and orders concerning PR/TT devices and warrants or orders, issued pursuant to the SCA, requiring disclosure of contents or records of electronic communications, and (2) prospectively, to place all such materials on the Court’s public docket, or else to unseal them after an appropriate period of time. Id. ¶ 1. Leopold and the Reporters Committee collectively are “the petitioners.” 6 The parties’ efforts to narrow the issues then progressed in three overlapping phases: (1)

the unsealing and public release by the Clerk’s Office of docket numbers and limited docket

information for PR/TT and certain SCA matters filed during an agreed-upon range of years; (2)

the unsealing and public release by the USAO of redacted PR/TT applications and orders from a

sampling of such matters filed in 2012, in order to assess both the burdens of redacting and

unsealing the requested records and the value of the information yielded; and (3) the extraction

by the USAO of agreed-upon categories of information from ten percent of PR/TT matters filed

in 2012, and the unsealing and public release of that extracted information. Each phase is

described further below.

A. The Court Unseals Docket Numbers and Limited Docket Information for PR/TT and Certain SCA Applications and Orders.

As summarized in a series of joint status reports, the parties agreed upon the steps

required to begin identifying the PR/TT and SCA applications and orders at issue. While

declining to limit the scope of their requests for ultimate relief, the petitioners agreed to limit the

unsealing immediately sought to PR/TT matters that the USAO initiated in 2012 “[f]or purposes

of this stage of the litigation.” First Joint Status Report (“1st Jt. Rpt.”) ¶ 2, ECF No. 19. The

USAO, in turn, agreed to “produce to petitioner a representative sampling of redacted

applications for the year 2012,” though the petitioners “declined to agree to a representative

sampling.” Id. ¶ 2. The parties requested that the Clerk’s Office prepare a list of the docket

numbers for PR/TT matters that the USAO initiated in 2012, and explained that the USAO

would then file a motion to partially unseal the dockets for these PR/TT matters for the limited

purpose of obtaining and using this list of docket numbers to match them with the relevant

7 internal USAO criminal investigation files. Id. ¶¶ 3–4.7 Once an actual investigation was

identified, the USAO would then determine which Assistant U.S. Attorney (“AUSA”), law

enforcement agent, and law enforcement agency had been assigned to that investigation, and

query whether a particular PR/TT matter concerned a pending, closed, or related pending

investigation. Id. ¶ 5. After a determination of the status of an investigation, the USAO would

move to unseal partially any PR/TT matter that the USAO could verify related to a closed

investigation and was irrelevant to any pending investigation, for the limited purpose of

obtaining certified copies of the PR/TT application and order as well as any other pleadings filed.

Id. ¶ 6. The USAO would then review such partially unsealed documents to determine whether

cause nonetheless existed to maintain the PR/TT matter under seal and, if not, what redactions

would be necessary prior to unsealing. Id. The USAO would redact personal identifying

information and the factual basis for each investigation, but disclose the statutory violation under

investigation. Id.

The USAO noted that this process

could take some time, inasmuch as the identification of the broader investigation that is implicated by a particular pen register application may not always be evident from the document itself, and in some instances those agents and Assistants with knowledge of the relevant investigation may have since been transferred or may no longer be employed with the government.

Id. ¶ 5. Indeed, determining whether an investigation is pending, closed, or related to a pending

investigation may itself “require consultation and coordination with various internal databases

and other jurisdictions.” Id. Despite the “problem” posed in verifying the status of an

7 The Clerk’s Office ascertained from review of CM/ECF dockets for sealed MC and MJ matters that the Clerk’s Office could identify which PR/TT applications had been filed by the USAO rather than by other DOJ components only through manual review of each PR/TT matter’s docket. 1 st Jt. Rpt. ¶ 3. 8 investigation, the USAO acknowledged that most PR/TT applications filed in 2012 likely related

to investigations that were closed. Hr’g Tr. (“Sept. 2016 Tr.”) at 5:20–22, 8:22 (Sept. 16, 2016),

ECF No. 23. Recognizing that “it is impossible to determine how long this process could take

with respect to all [PR/TT] pleadings for 2012,” the parties agreed that the USAO would initially

produce a small number of redacted 2012 PR/TT applications and orders. 1st Jt. Rpt. ¶ 7; see

also Sept. 2016 Tr. at 1–3 (reaffirming the parties’ intent to proceed initially with the unsealing

of three PR/TT matters from 2012). “The exercise of locating, redacting and producing these

documents,” the parties said, “should provide insight . . . regarding the work entailed” and

inform the scope and form of any further disclosure to follow. 1st Jt. Rpt. ¶ 7. The parties agreed

to confer once the USAO had released redacted materials from three 2012 PR/TT matters to

determine how to proceed from there. Sept. 2016 Tr. at 20:15–16, 21:1–13.

The Court agreed to the parties’ request to unseal MC docket numbers for PR/TT matters

that the USAO initiated in 2012. Id. at 4:6–13. To re-focus the parties on prospective relief, the

Court also instructed the parties to advise whether a docketing system similar to that

implemented in the U.S. District Court for the Eastern District of Virginia would provide the

petitioners meaningful prospective relief in the form of limited public information about PR/TT

and § 2703(d) matters. Id. at 11:15–25, 12:1–25, 13:1–9, 16:22–24.8

8 The U.S. District Court for the Eastern District of Virginia maintains what is known as the “EC” (“electronic communications”) docket, which is “a ‘running list’ that is publicly available from the [U.S. District Court for the Eastern District of Virginia’s] clerk’s office.” United States v. Appelbaum (In re U.S. for an Order Pursuant to

(D)),

(4th Cir. 2013). The EC docket “indicates all assigned case numbers, the date of assignment, the presiding judge, and whether the case is sealed” for PR/TT and SCA applications under

(d), and “lacks individual docket entries for all types of documents filed in each case and the dates of such entries.”

The USAO has indicated that the Eastern District of Virginia’s EC docket reveals to the public some information that relates to open investigations, but “doesn’t seem to put anybody in danger,” and that a similar docketing system’s implementation in this jurisdiction would be “acceptable.” Hr’g Tr. (“Dec. 2016 Tr.”) at 10:8 (Dec. 19, 2016), ECF No. 31. 9 Shortly thereafter, the Court provided Notice to the parties of the unsealing of a 53-page

list of 235 matter numbers, most of which were MC numbers, for all PR/TT matters that the

USAO initiated in 2012, along with limited docket information (i.e., the matter caption, dates of

the application’s filing and entry onto the docket, the application’s caption, and the application’s

CM/ECF case type). See Order and Notice to the Parties, Attach. A, List of Misc. Case Numbers

for PR/TT Applications and Orders Filed in 2012 by USAO (“2012 PR/TT List”), ECF No. 22-

1.9 With the unsealing and release of this PR/TT matter docket information, the USAO was

directed to undertake the proposed sampling process to which the parties had agreed. See Order

and Notice to the Parties, ECF No. 22.10

The parties subsequently jointly proposed, as an “initial step in the process for addressing

sealed original [PR/TT] matters filed by the USAO in other years,” that the Clerk’s Office

compile lists of all PR/TT matters that the USAO filed in the years 2008 through 2011, and 2013

through 2016. Third Joint Status Report (“3rd Jt. Rpt.”) ¶ 9, ECF No. 27; see also Fourth Joint

Status Report (“4th Jt. Rpt.”) ¶ 3, ECF No. 28 (petitioners agreeing to limit earliest year for

PR/TT applications and orders to 2008); Hr’g Tr. (“Dec. 2016 Tr.”) at 10:10–15 (Dec. 19, 2016),

ECF No. 31 (USAO withdrawing objection to petitioners’ request for PR/TT matters lists

through 2016). In separate Notices filed in February and April, 2017, the Court granted this

request and provided the parties unsealed matter numbers for USAO-initiated PR/TT matters and

orders in the years 2008 through 2011 and 2013 through 2016, along with limited docket

9 The 2012 PR/TT List refers for each matter to a date “Entered,” see generally Order and Notice, which date is when the PR/TT application was entered on the docket. 10 Notably, the 2012 PR/TT List revealed that PR/TT applications filed in 2012 had been assigned inconsistent CM/ECF case types: some applications had been docketed using the “MC” case type, others using the “Complaint” (“CMP”) case type, and others using the “Order” case type. See generally 2012 PR/TT Lists. The Clerk’s Office overcame this lack of administrative uniformity by searching the local CM/ECF dockets for the term “Pen Register” and the relevant statutory authority in the application caption. 10 information (i.e., the matter caption, dates of the application’s filing and entry onto the docket,

the application’s caption, and the application’s CM/ECF case type). See Order & Notice to the

Parties, ECF No. 32;

Attachs. A–E, Lists of Misc. Case Nos. for PR/TT Appls. & Orders

Filed in 2011, 2013–2016 by USAO, ECF Nos. 32-1, 32-2, 32-3, 32-4, 32-5; Order and Notice to

the Parties, ECF No. 37;

Attachs. A–C, Lists of Misc. Case Nos. for PR/TT Appls. & Orders

Filed in 2008–2010 by USAO ECF Nos. 37-1, 37-2, 37-3 (collectively, with 2012 PR/TT List,

“PR/TT Lists”). These lists identified the USAO as having initiated the following numbers of

PR/TT matters in each year: 329 in 2008; 244 in 2009; 231 in 2010; 284 in 2011; 310 in 2013;

209 in 2014; 217 in 2015; and 189 in 2016. See PR/TT Lists. Thus, lists of USAO-initiated

PR/TT matters, with limited associated docket information, were released for nine years, 2008

through 2016, and reflected a total of 2,248 USAO-initiated PR/TT matters, not counting any

extensions.

The parties also requested access, similar to that for PR/TT matters, to lists of sealed

matters regarding USAO applications for disclosure of electronic communications records,

pursuant to

(d), for the years 2008 through 2016. Sixth Joint Status Report (“6th

Jt. Rpt.”) ¶ 20, ECF No. 36. This request was denied, “due to the myriad challenges, and

resultant burden, of compiling such a list.” Order & Notice to the Parties at 2, ECF No. 40.

First, due to “the lack of uniform captions or textual form used for these records,” which led to

inconsistent docketing “on the [CM/ECF] system for these records,” accurate identification of §

2703(d) matters was challenging and time-consuming. Id. In fact, the effort to compile a list of

over eight hundred § 2703(d) matters for the year 2016 had taken the Clerk’s Office over one

month. Id. Second, determining whether the USAO or another entity had filed a § 2703(d)

application would require review of individual dockets, “a time-consuming task given the

11 number of [matters] potentially subject to such review.” Id. Third, determining whether §

2703(d) materials implicated grand jury subpoenas, to which obligations of secrecy attach under

Rule 6(e) of the Federal Rules of Criminal Procedure, likewise would require time-consuming

review of individual dockets. Id. at 3. Fourth, “these and other challenges may be exacerbated

for earlier years based upon the Clerk’s Office staff experience compiling the previously issued

PR/TT lists.” Id.

In response to the Court’s practical concerns over compiling lists of § 2703(d) matters,

the parties proposed, through a joint status report, that the Clerk’s Office conduct targeted

searches that “would alleviate any need . . . to manually open and review dockets.” Seventh

Joint Status Report (7th Jt. Rpt.”) ¶ 15, ECF No. 41. The parties specifically requested that the

Clerk’s Office search for matters (1) corresponding with CM/ECF’s § 2703(d) designated event

type, regardless of whether accompanied by an application for delayed notice pursuant to

(b) or filed by the USAO or a different DOJ component, and (2) responsive to a set

of five defined search terms likely to capture SCA warrant applications, pursuant to

(a) and (b) (there being no designated CM/ECF case or event type for SCA warrant

materials).

¶¶ 13–14.11 The parties acknowledged that any lists generated by such searches

likely “would be under-inclusive,” but asserted “that use of these search terms would be

substantially effective and significantly reduce [the] burden on the Clerk’s Office.”

.

The parties “respectfully request[ed] as an initial matter that the Clerk’s Office run the searches

described above to generate a total number of matters for each [type] of materials,” so as to

11 The five search terms that the parties believed “would be highly likely to capture SCA Search Warrant Materials” are: “a. *INFORMATION ASSOCIATED WITH*; b. *EMAIL ACCOUNT*; c. *E-MAIL ACCOUNT*; d. *USER ID*; e. *COMPUTER SERVERS*.” 7th Jt. Rpt. ¶ 14. 12 “allow the parties to understand the volume of Section 2703(d) and SCA Search Warrant matters

at issue.”

.

The Court provided the parties with the total number of matters responsive to the above-

described searches, with the significant caveats that such numbers could be under-inclusive by

not capturing all SCA matters initiated by the USAO and other DOJ components, and may also

reflect double-counting of § 2703(d) matters “since applications for § 2703(d) orders filed in

more than one year in the same Miscellaneous matter will result in the same matter being

counted in more than one year.” See Notice to the Parties (“Section 2703(d) Notice”) at 2, ECF

No. 43; Notice to the Parties (“SCA Warrant Notice”) at 2, ECF No. 45. Specifically, the

number of § 2703(d) matters responsive to the searches and filed in the following years were:

2008 – 80; 2009 – 55; 2010 – 136; 2011 – 90; 2012 – 64; 2013 – 160; 2014 – 334; 2015 – 581;

2016 – 1,136. Section 2703(d) Notice.12 The number of SCA warrant matters responsive to the

parties’ suggested searches and filed in the following years were: 2008 – 0; 2009 – 68; 2010 –

121; 2011 – 152; 2012 – 164; 2013 – 131; 2014 – 107; 2015 – 252; 2016 – 271. SCA Warrant

Notice. Thus, the total approximate number, over the relevant nine year period, of § 2703(d)

matters was 2,636, and SCA warrant materials was 1,266.

B. The USAO Produces Redacted Materials From Four PR/TT Matters Using Sampling Process.

Following the Court’s unsealing and release of the 2012 PR/TT List, the USAO reviewed

the list to match each docket number with the USAO’s internal investigative file, using the target

12 The Clerk’s Office calculated these numbers by tabulating, for each year, “the total number of Miscellaneous matters connected to three event [types] in CM/ECF, namely (1) Application for Order Pursuant to

(d); (2) Application for an Order Pursuant to

(c)(1)(B) & 2703(d); and (3) Application for Historical Cell Site Information for a Telephone Number.” Section 2703(d) Notice. 13 telephone or account number, and then identified the AUSA assigned to the matter, a process

that took several days. Gov’t Status Report ¶ 2, ECF No. 24. Upon completing that review, the

USAO selected a representative sampling of ten PR/TT matters assigned to AUSAs still

employed by the USAO, and contacted each AUSA to determine whether, in the AUSA’s view,

a PR/TT matter could be unsealed, in part or whole.

In determining whether a PR/TT matter

could be unsealed, “the AUSAs first retrieved and reviewed paper and/or electronic files, and, in

some instances, consulted with the law enforcement agents and/or their supervisors.”

The

USAO ultimately determined that four of the ten sample PR/TT matters could be unsealed with

redactions, but lacked sufficient information to make an informed determination on unsealing as

to the other six matters.

The USAO then moved to unseal in part those four matters for the

limited purpose of obtaining certified copies of all documents filed in each docket, which

motions the Court granted.

; Minute Order, dated October 31, 2016 (granting USAO

motions to unseal in part 12-MC-12, 12-MC-129, 12-MC-227, and 12-MC-397 for limited

purpose). The USAO received certified copies of the documents filed in each of the four PR/TT

matter dockets soon thereafter, and provided the documents to each matter’s assigned AUSA for

review and to propose redactions. Gov’t Status Report ¶ 4.

The USAO then moved to unseal in part the four PR/TT matters, see Second Joint Status

Report ¶ 2, ECF No 25, with uniform redaction of personally identifiable information, such as

names, addresses, and telephone or account numbers, as well as details about the underlying

criminal investigations, see 3rd Jt. Rpt. ¶ 3; see Minute Order, dated Dec. 2, 2016 (directing

USAO to move to unseal the four PR/TT matters under review and propose any needed

redactions). The Court granted these motions and placed redacted copies of the documents for

the four sample PR/TT matters on the public docket in this matter. See Notice to the Parties,

14 Attach. A, Unsealed & Redacted Filings in Matter No. 12-MC-12, ECF No. 26-1;

Attach. B,

Unsealed & Redacted Filings in Matter No. 12-MC-129, ECF No. 26-2;

Attach. C, Unsealed

& Redacted Filings in Matter No. 12-MC-227, ECF No. 26-3;

Attach. D, Unsealed &

Redacted Filings in Matter No. 12-MC-397, ECF No. 26-4 (collectively “Sample PR/TT

Materials”). These redacted filings amount to 127 pages overall, and covered both original

PR/TT applications and extension applications. See Sample PR/TT Materials.

The redacted PR/TT materials, stripped of identifying information about the individual or

underlying criminal activity under investigation, revealed that the USAO’s PR/TT applications

largely used the same language to describe (1) the service provider from whom the USAO

sought to compel production, (2) the scope of legal authority sought, (3) the need for such

authority, (4) the steps the USAO would take in exercising that authority, including technical

assistance to be required of the service provider, and (5) a request for sealing. See generally

The parties expressed disagreement as to the significance of the information that the sample

PR/TT matter materials revealed. The USAO described the materials as “substantially similar

and reveal[ing] largely boilerplate information,” and argued that any additional information that

unsealing all of the remaining 2012 PR/TT matters might yield would have little value to the

public relative to the significant “expendi[ture of] judicial and prosecutorial resources” that such

broad unsealing would entail. 3rd Jt. Rpt. ¶¶ 4, 7. Consequently, the USAO proposed instead to

undertake the same sampling process used for the ten PR/TT matters in 2012 for a representative

sample of PR/TT applications in other years.

.

The petitioners, meanwhile, continued to insist that all PR/TT materials in closed

investigations filed by the USAO be unsealed, subject to categorical redaction of personal or

15 criminal investigation identifying information, “on a mutually agreeable schedule.”

.13

The petitioners described the unsealed sample materials as “substantively of interest to the[m],

and the press and public more generally,” given that the materials “reveal[ed], among a number

of other things, the carriers involved in each matter, as well as the fact that in two of the four

matters the government repeatedly sought extensions of the court’s authorization to use a

[PR/TT] device.”

.

C. The USAO Extracts Categories of Information from Sealed PR/TT Matters.

At a status conference, in December 2016, to address the apparent impasse between the

parties regarding the scope of unsealing records on the 2012 PR/TT List, the USAO described

several practical challenges associated with the unsealing and redaction process used with

respect to the four sample PR/TT matters. Dec. 2016 Tr. at 11:15–25, 12:1–5. The USAO

explained that roughly half of the AUSAs who had filed particular PR/TT applications in 2012

no longer worked at the USAO, and that those AUSAs still employed had difficulty matching

PR/TT applications with particular docket numbers, given that the USAO’s internal tracking

system organizes files using internal reference numbers different from the docket number

assigned by the Clerk’s Office to a particular matter.

at 11:15–24. The USAO represented

that it was “rethinking” how it maintains its own files to facilitate more easily the matching of

Miscellaneous matter numbers to the internal USAO investigative file, but that “[w]e’re not there

yet.”

.14 Further, the process of partially unsealing a PR/TT matter to identify its

13 The petitioners declined to “concede that the[se] categorical redactions are warranted or permissible in any individual matter,” but agreed not to “challenge the propriety of redactions made by the government” so as “to facilitate the prompt unsealing of all of the electronic surveillance materials at issue that the government agrees should be unsealed.” 3rd Jt. Rpt. ¶ 8. 14 As described infra Part II.D, this issue has now been addressed by the USAO’s adoption of the use of templates that include the internal USAO reference number on sealed PR/TT and SCA-related applications. 16 initiating AUSA “was just too time consuming,”

, particularly since the USAO was

required to obtain physical copies of docket materials, as the USAO lacked electronic access to

such sealed materials,

at 33:1–21, and the redaction process was “painstaking” to ensure

protection of all personally identifiable information and details about an underlying criminal

investigation,

at 20:14–24.15

In response to these practical concerns about the “painstaking” unsealing and redaction

process the USAO had used with respect to the four sample 2012 PR/TT matters, the Court

suggested that the USAO use an “extract[ion]” process as a “simple[r] . . . alternative” going

forward.

Under this approach, the parties would identify particular categories of information

contained in PR/TT materials that the USAO would extract and provide to the petitioners.

Extracting information from PR/TT materials not only would consume less of the USAO’s time

than an unsealing and redaction process, but would minimize the possibility of inadvertent

disclosure of information properly kept under seal, such as personally identifying information.

at 24:1–7. The parties agreed in principle to consider and confer about such an extraction

process.

at 37:23–25, 38:1–7. In response to the USAO’s concern about accessing PR/TT

materials electronically, the Court agreed to allow the USAO to access such sealed materials

electronically.

at 33:22–25, 34:1–11. In addition, the Court proposed that the petitioners

limit the scope of their request for unsealing and disclosure to materials that the USAO had filed

electronically through CM/ECF, and urged the parties to confer as to the scope of potential

prospective relief.

at33:22–25, 34:1–17, 35:15–18, 21–22, 25, 36:1.

15 As to the latter concern, the Court suggested that the USAO adopt templates for PR/TT applications and proposed orders that located all personally identifying information in uniform paragraphs within, rather than scattered throughout, the documents. Dec. 2016 Tr. at 16:15–23. Such templates have recently been adopted by the USAO. See infra Part II.D. 17 The parties soon advised that they would use the Court’s proposed extraction method

going forward as an alternative to the unsealing and redaction process the USAO had used with

respect to the four sample 2012 PR/TT matters. 4th Jt. Rpt. ¶¶ 4–7. In addition, the parties

reached three agreements regarding the scope of the petitioners’ requests. First, the petitioners

“agreed to limit their request for the unsealing of [PR/TT] matters to those matters filed by the

USAO” from 2008 to the present, as earlier-filed PR/TT matters are not “electronically stored

and retrievable.”

.16 Second, the USAO agreed to the unsealing or partial unsealing of

two narrow categories of PR/TT materials—(1) PR/TT applications, along with related filings,

that had been denied by judicial order, and (2) any substantive judicial opinions or orders entered

in connection with a PR/TT application.

. Third, the parties “agreed, in principle,” that

the Court should create a public docketing system, modeled largely on the Eastern District of

Virginia’s “EC” docket, that would provide limited public information about sealed matters,

including PR/TT matters.

. The USAO expressed “willing[ness] to engage in . . .

discussions to help facilitate implementation of this type of system,” and observed “that any

change to the manner in which sealed matters are docketed would be greatly aided if the

government were permitted to file sealed matters electronically,” rather than in paper form, as

then-existing policy required.

The parties did not agree, however, on two issues: first, they failed to agree on the

categories of information the USAO would extract, but pledged to “continue to discuss and

attempt to reach an agreement on what categories of information can be extracted,” and, second,

they disagreed on whether the USAO would extract information from a ten percent sample or

16 In a subsequent joint status report, the parties clarified that “the present” referred to the year 2016. See Fifth Joint Status Report (5th Jt. Rpt.”) ¶ 3, ECF No. 30. 18 from all PR/TT matters for each year.

.

The parties soon reached a general agreement that the USAO would extract fifteen

specific categories of information from some or all of the sealed PR/TT dockets: (1) Case

Number, (2) Docket Number, (3) Date Executed, (4) Date Docketed, (5) Type (original or

extension application), (6) Order Accompanied By Opinion (yes, no, or not applicable), (7)

Number of Pages, (8) Signed By (AUSA or Magistrate Judge name), (9) Device Type, (10)

Statutory Violation(s), (11) Agency, (12) Service Provider, (13) Number of Target Email

Addresses / Phone Numbers / Addresses, Etc., (14) Other Statutory Authority, And If So, What

(e.g., Section 2703(d)), and (15) Other Requests, And If So, For What (e.g., Cell Site Data)

(collectively “extracted information”). Fifth Joint Status Report (“5th Jt. Rpt.”) ¶ 5, p.6 tbl., ECF

No. 30. Notwithstanding this broad agreement, however, the parties continued to disagree on

three points: whether (1) the USAO would provide names of AUSAs who had initiated PR/TT

applications; (2) the USAO would redact the statutory violation at issue where such information

is deemed “particularly sensitive,” with reservation of the petitioners’ “right to challenge the

redaction of any information in the chart [that the USAO] provided;” and (3) the USAO would

extract information from ten percent or all of the sealed PR/TT matters.

¶¶ 5–8.

The parties’ three disagreements were resolved through Court rulings the following week.

Specifically, the Court ruled that the USAO was not required to: (1) extract the names of AUSAs

who had initiated particular PR/TT applications, Hr’g Tr. (“Feb. 2017 Tr.”) at 21:24–25, 28:7–

20, 42:18 (Feb. 17, 2017), ECF No. 34; (2) reveal the underlying statutory violations being

investigated, when such information was sensitive and could potentially disclose or affect an

ongoing investigation, subject to the petitioners’ right to challenge any such withholding as to

particular matters,

at 22:13 – 25, 23:9–13; or (3) extract information from all sealed PR/TT

19 matters—rather, the USAO would be required to extract information from only ten percent of

matters, at least initially, although the petitioners could later seek additional extraction should the

extraction process turn out to be less burdensome than the USAO anticipated,

at 45:14–18.

The USAO completed the extraction process and provided the petitioners an extraction

chart for ten percent of PR/TT matters filed by the USAO in 2012, for a total of 24 PR/TT

matters. 6th Jt. Rpt., Ex. A, Extraction Chart, ECF No. 36. The USAO asserted that completing

the extraction process for the 2012 PR/TT matters “took approximately 8.5 hours,”

, but

nonetheless expressed willingness to perform the same extraction process for a ten percent

sample of the remaining eight years of PR/TT matters,

.17 Despite the USAO’s proposal

to proceed with the extraction process for other years, the parties reported that they “ha[d]

reached an impasse,” as to whether USAO should extract information from ten percent or all of

the sealed PR/TT matters for 2012 and the remaining years.

.

Due to the petitioners’ objection to moving forward with the extraction process from only

a sample of ten percent from each list, the cooperative review and release of additional

information from the sealed records at issue came to a screeching halt. The parties instead

requested a briefing schedule to address “whether the common law and/or U.S. Constitution

provide the public and, thus, petitioners, a right of access to the records from [PR/TT] matters

that their respective Petitions seek to unseal.”

.18

17 A Reporters Committee fellow asserted that she had completed the extraction process for the four 2012 matters previously unsealed in 47 minutes. See 6th Jt. Rpt., Ex. B, Decl. of Selina MacLaren, Legal Fellow, Reporters Comm. ¶¶ 2–4, ECF No. 36. 18 The first briefing schedule, see Minute Order, dated April 20, 2017, required modification since the petitioners initially addressed only the relief sought as to PR/TT materials, even though the petitioners clarified that they had not abandoned their claims for relief as to SCA applications and orders. Pet’rs’ Mem. Supp. Pet. at 1 n.1, ECF No. 38. The Court directed the parties to confer regarding SCA materials, revised the briefing schedule to accommodate such conference, and directed the petitioners to address their SCA claims along with their PR/TT claims and “specify the precise relief sought.” See Minute Order, dated May 22, 2017. After providing the parties 20 Briefing on these legal issues is now complete, and the petitioners’ requests are ripe for

review.

II. DISCUSSION

“The right of public access is a fundamental element of the rule of law, important to

maintaining the integrity and legitimacy of an independent Judicial Branch.” Metlife, Inc. v. Fin.

Stability Oversight Council,

(D.C. Cir. 2017). “[D]istrust for secret trials has

been variously ascribed to the notorious use of this practice by the Spanish Inquisition, to the

excesses of the English Court of Star Chamber, and to the French monarchy’s abuse of the lettre

de cachet.” In re Oliver,

, 268–69 (1948) (footnotes omitted). James Madison

warned that “[a] popular Government without popular information, or the means of acquiring it,

is but a Prologue to a Farce or a Tragedy: or perhaps both. . . . A people who mean to be their

own Governors, must arm themselves with the power which knowledge gives.” Metlife, Inc.,

(quoting Letter from James Madison to W. T. Barry, Aug. 4, 1822, in 9 THE

WRITINGS OF JAMES MADISON 103 (Gaillard Hunt ed. 1910)).

“The public right of access [thus] is undisputed in both its importance and its historical

pedigree.” United States v. El-Sayegh,

(D.C. Cir. 1997). “Public access

serves to promote trustworthiness of the judicial process, to curb judicial abuses, and to provide

the public with a more complete understanding of the judicial system, including a better

perception of fairness.” Doe v. Pub. Citizen,

(4th Cir. 2014) (quoting

Littlejohn v. Bic Corp.,

(3d Cir. 1988)). Unlike“[t]he political branches of

government,” which “claim legitimacy by election, [a] judge[’]s” legitimacy derives solely “by

the SCA matter lists discussed above, the Court set a revised briefing schedule. Minute Order, dated July 28, 2017. 21 reason.” Hicklin Eng’g, L.C. v. Bartell,

(7th Cir. 2006). “Any step that

withdraws an element of the judicial process from public view makes the ensuing decision look

more like a fiat and requires rigorous justification.”

“Although the right [of public access] is

not absolute, there is a strong presumption in its favor, which courts must weigh against any

competing interests.” Metlife, Inc.,

.

“The right of public access” to judicial proceedings and records “springs from [both] the

First Amendment and the common-law tradition” that such proceedings and records “are

presumptively open to public scrutiny.” Doe,

; see In re U.S. for an Order of

Nondisclosure Pursuant to

(b) for Grand Jury Subpoena # GJ2014031422765,

(D.D.C. 2014) (“The First Amendment or the common law provides the legal

basis for the public’s right of access to court records, depending on the particular court records at

issue.”). “[T]he right of public access, whether arising under the First Amendment or the

common law, ‘may be abrogated only in unusual circumstances.’” Doe,

(quoting Stone v. Univ. of Md. Med. Sys. Corp.,

, 182 (4th Cir. 1988)); cf. EEOC v.

Nat’l Children’s Ctr., Inc.,

(D.C. Cir. 1996) (“[T]he starting point in

considering a motion to seal court records is a strong presumption in favor of public access to

judicial proceedings.” (internal quotation marks omitted)). Different analytical frameworks

apply to claimed rights of access established by the First Amendment and the common law,

respectively. Those legal frameworks are discussed first, followed by a brief examination of the

statutes authorizing the government surveillance applications and orders at issue, and then an

analysis of the petitioners’ requested relief, both prospectively and retrospectively.

A. Legal Framework

22 1. First Amendment Right of Access to Judicial Records

Courts utilize a two-step framework to assess the validity of a claimed First Amendment

right of access. See Press–Enter. Co. v. Superior Court of Cal. for Riverside Cty. (“Press-Enter.

II”),

, 8–9 (1986). The inquiry’s first step, sometimes called the “experience and

logic” test, is to determine whether a qualified right of access exists.

. “The public

possesses a qualified First Amendment right of access to judicial proceedings where (i) there is

an ‘unbroken, uncontradicted history’ of openness, and (ii) public access plays a significant

positive role in the functioning of the proceeding.” United States v. Brice,

(D.C. Cir. 2011) (quoting Richmond Newspapers, Inc. v. Virginia,

(1980)).

The inquiry’s second step is to determine whether an “overriding interest based on

findings that closure is essential to preserve higher values and is narrowly tailored to serve that

interest” nonetheless trumps any qualified right of access that attaches. Press-Enter. II,

(quoting Press–Enter. Co. v. Superior Court of Cal. (“Press–Enter. I”),

(1984)). “Where there is a First Amendment right of access to a judicial proceeding, the

‘presumption of access can be overridden only if (1) closure serves a compelling interest; (2)

there is a substantial probability that, in the absence of closure, this compelling interest would be

harmed; and (3) there are no alternatives to closure that would adequately protect the compelling

interest.’” Brice,

(quoting Wash. Post v. Robinson,

(D.C. Cir.

1991)).

The Supreme Court has applied the First Amendment right of access not only to criminal

trials, see Richmond Newspapers, Inc.,

, but also to “judicial proceedings that are

part of the criminal trial process,” Ctr. for Nat’l Sec. Studies v. U.S. Dep’t of Justice,

(D.C. Cir. 2003); see Press-Enter. I,

(criminal voir dire); Press-Enter.

23 II,

(criminal preliminary hearings, as “conducted in California”). “[M]ost circuit

courts,” moreover, “have recognized that the First Amendment right of access extends to civil

trials and some civil filings.” ACLU v. Holder,

(4th Cir. 2011) (collecting

decisions).

2. Common Law Right of Access to Judicial Records

The common law also provides a right of access “to inspect and copy public records and

documents, including judicial records and documents.” Nixon v. Warner Commc’ns, Inc.,

(1978) (footnote omitted). Determining “whether a document must be disclosed

pursuant to the common law right of access involves a two-step inquiry.” Wash. Legal Found. v.

U.S. Sentencing Comm’n,

(D.C. Cir. 1996). “First, the court must decide

whether the document sought is a ‘public record.’”

(internal quotation mark omitted).

Second, “the court should proceed to balance the government’s interest in keeping the document

secret against the public’s interest in disclosure.”

(internal quotation mark omitted).

Courts weigh six “generalized” factors, enumerated in United States v. Hubbard, and any

relevant “particularized” factors in determining “the precise weight to be assigned . . . to the

always strong presumption in favor of public access to judicial proceedings.”

(D.C. Cir. 1980). The Hubbard test is the D.C. Circuit’s “lodestar because it ensures that we

fully account for the various public and private interests at stake.” Metlife, Inc.,

(collecting citations). The six generalized Hubbard factors are “(1) the need for public access to

the documents at issue; (2) the extent of previous public access to the documents; (3) the fact that

someone has objected to disclosure, and the identity of that person; (4) the strength of any

property and privacy interests asserted; (5) the possibility of prejudice to those opposing

disclosure; and (6) the purposes for which the documents were introduced during the judicial

24 proceedings.”

at 665 (quoting Nat’l Children’s Ctr., Inc.,

).

Hubbard makes clear, however, that these generalized interests do not exhaust the

considerations that a court weighs in determining whether to unseal documents, and that a court

also must consider such particularized interests as specific contexts make relevant, where the

generalized factors do not adequately account for such particularized interests. See Hubbard,

(“To be weighed against the particularized reasons which may justify public

access are the particularized privacy or other interests. . . defendants may assert.”), 324

(recognizing that a court may, in proper circumstances, determine disclosure’s propriety “on the

basis of the ‘particularized’ factors” even where “analysis of the generalized interests at stake”

suggest a different outcome).19 A court’s ultimate task, in applying the Hubbard factors, is to

“consider[] the relevant facts and circumstances of the particular case, . . . weigh[] the interests

advanced by the parties in light of the public interest and the duty of the courts,” and reach a

“conclu[sion]” as to “[w]hat justice so requires.’” Metlife, Inc., 865 F.3d at 665–66 (quoting In

re Nat’l Broad. Co.,

(D.C. Cir. 1981)).

B. The Surveillance Materials At Issue

The government’s gathering of evidence, both real-time and historical, in criminal

investigations is highly regulated by statutes, codified in Title 18 of the United States Code, and

in rules set out in the Federal Rules of Criminal Procedure. See, e.g.,

et seq.

(governing real-time interception of wire, oral, or electronic communications);

Although the particularized interests identified by the Hubbard panel as relevant to that case were interests in personal privacy, Hubbard made clear that privacy interests are not the only type of particularized interest a court may consider in evaluating a motion to unseal.

(“To be weighed against the particularized reasons which may justify public access are the particularized privacy or other interests . . . defendants may assert.” (emphasis added)). 25 2518(11), (12) (governing roving wiretaps);

(c) (governing compelled

disclosure of basic subscriber information from electronic communications service and remote

computing providers); 18 U.S.C. § 3103a (permitting covert searches if notice will cause an

“adverse result”);

(governing mobile tracking devices); FED. R. CRIM. P. 41

(governing search and seizure warrants). While the petitioners’ focus in this case is concededly

“broad,” June 2016 Tr. at 5:24, they nonetheless seek the unsealing of records related to only a

subset of law enforcement evidence collection efforts, as authorized by the Pen Register Act

(“PRA”) and parts of the SCA. These two statutes are reviewed below, with particular attention

to any provisions reflecting any presumption regarding initial or eventual public access.

1. The Pen Register Act—PR/TT Materials

The PRA authorizes “[a]n attorney for the Government” to apply “for an order or an

extension of an order . . . authorizing or approving the installation and use of a pen register or a

trap and trace device under this chapter, in writing under oath or equivalent affirmation, to a

court of competent jurisdiction.”

(a)(1). PR/TT devices are devices or

processes that record outgoing and incoming signals from an instrument or facility that transmits

or receives an “electronic communication,” and can be used to identify the source or recipient of

that communication, “albeit not the contents of that communication.” In re U.S. for an Order

Authorizing the Installation & Use of A Pen Register & A Trap & Trace Device on E-Mail

Account,

, 15–16 (D.D.C. 2006) (Hogan, C.J.) (citing definitions in

(3), (4), and concluding that the PRA “authorize[s] the Government to use pen registers

and trap and trace devices on e-mail accounts during the course of criminal investigations”); see

also Labow v. U.S. Dep’t of Justice,

(D.C. Cir. 2016) (“A pen register is a

26 device installed on a phone line to enable recording the phone numbers dialed on that line.”).20

The PRA provides explicit instructions regarding the requisite content of applications

seeking, and orders authorizing, the use of PR/TT devices. Each application must include

“(1) the identity of the attorney for the Government or the State law enforcement or investigative

officer making the application and the identity of the law enforcement agency conducting the

investigation; and (2) a certification by the applicant that the information likely to be obtained is

relevant to an ongoing criminal investigation being conducted by that agency.”

§ 3122(b).

The order authorizing the use of the PR/TT device must be entered “ex parte” based on a judicial

finding “that the attorney for the Government has certified to the court that the information likely

to be obtained by such installation and use is relevant to an ongoing criminal investigation.” Id.

§ 3123(a)(1).

A PR/TT order “shall specify” certain information about the target of this form of real-

time surveillance, including: “the identity, if known, of the person to whom is leased or in whose

name is listed the telephone line or other facility” on which the PR/TT device is used; “the

identity, if known, of the person who is the subject of the criminal investigation;” “the attributes

of the communications to which the order applies, including the number or other identifier and, if

known, the location of the telephone line or other facility” on which the PR/TT device is used;

and “a statement of the offense to which the information likely to be obtained by the pen register

or trap and trace device relates.” Id. § 3123(b)(1). PR/TT orders “shall authorize” the installation

20 A “pen register” is “a device or process which records or decodes dialing, routing, addressing, or signaling information transmitted by an instrument or facility from which a wire or electronic communication is transmitted, provided, however, that such information shall not include the contents of any communication.”

(3). A “trap and trace device” is “a device or process which captures the incoming electronic or other impulses which identify the originating number or other dialing, routing, addressing, and signaling information reasonably likely to identify the source of a wire or electronic communication, provided, however, that such information shall not include the contents of any communication.”

§ 3127(4). 27 of a PR/TT device for no longer than 60 days, though extensions may be granted. Id. § 3123(c).

Notably, such orders also “shall direct that . . . (1) the order be sealed until otherwise

ordered by the court; and (2) the person owning or leasing the line or other facility to which the

pen register or a trap and trace device is attached or applied, or who is obligated by the order to

provide assistance to the applicant, not disclose the existence of the pen register or trap and trace

device or the existence of the investigation to the listed subscriber, or to any other person, unless

or until otherwise ordered by the court.” Id. § 3123(d). The D.C. Circuit has pointed out that the

PRA “provides for sealing [only] of a pen register order itself, not sealing of any and all

information the order may contain even if appearing in other documents.” Labow,

(concluding that a pen register order was “shielded” from disclosure, under the Freedom of

Information Act (“FOIA”), as specifically exempt by operation of the PRA, but not addressing

“the extent [to which] the [PRA] arguably authorizes withholding documents other than a pen

register order”).

2. The Stored Communications Act—SCA Warrant and Section 2703(d) Materials

The SCA was enacted in 1986 as Title II of the Electronic Communications Privacy Act

(“ECPA”),

Stat. 1848 (1986), and regulates, inter alia, the

government’s access to stored wire and electronic communications. The SCA’s § 2703 “permits

the government, in specified circumstances, to compel service providers to disclose records or

information pertaining to their customers as well as the contents of their customers’

stored electronic communications.” In re Search of Info. Associated with [redacted]@gmail.com

That is Stored at Premises Controlled by Google, Inc. (“Google”), No. 16-MJ-00757 (BAH),

, at *6 (D.D.C. July 31, 2017) (Howell, C. J.). “This provision’s framework

provides a sliding scale of protections, such that the legal mechanism law enforcement utilizes 28 and showing required depends on the kind of information sought.”

Particularly relevant here, the SCA authorizes the government to require electronic

communication service and remote computing service providers to disclose “the contents of a

wire or electronic communication,” without notice to the subscriber, pursuant to a warrant

“issued using the procedures described in the Federal Rules of Criminal Procedure.”

(a), (b)(1)(A). In addition to such SCA warrants, the SCA also authorizes the

government to compel disclosure under § 2703(d) of records pertaining to the subscriber, beyond

the basic information set out in 2703(c)(1), to include such records as “logs maintained by a

network server.” Orin S. Kerr, A User’s Guide to the Stored Communications Act, and A

Legislator’s Guide to Amending It (“User’s Guide”), 72 GEO. WASH. L. REV. 1208, 1219

(2004).21 A § 2703(d) order may issue “only if the governmental entity offers specific and

articulable facts showing that there are reasonable grounds to believe that . . . the records or other

information sought, are relevant and material to an ongoing criminal investigation.”

(d).22

Unlike the PRA, the SCA contains no provision requiring the sealing of SCA warrants or

21 Section 2703(d) has been interpreted to allow the government to obtain historical cell site data, see, e.g., In re U.S. for an Order Authorizing Monitoring of Geolocation & Cell Site Data for a Sprint Spectrum Cell Phone No., No. 06-mc-0186,

, at *2 n.3 (D.D.C. Aug. 25, 2006) (Hogan, C. J.); In re U.S. for an Order Authorizing the Installation and Use of a Pen Register and/or Trap and Trace for Mobile Identification Number (585) 111–1111 and the Disclosure of Subscriber and Activity Information under

,

(W.D.N.Y. 2006), but pending before the Supreme Court is the issue of “[w]hether the warrantless seizure and search of historical cell phone records revealing the location and movements of a cell phone user over the course of 127 days,” pursuant to § 2703(d), “is permitted by the Fourth Amendment,” Carpenter v. United States,

(U.S. June 5, 2017) (No. 16-402). 22 Although § 2703(d), by its terms, authorizes the government to obtain the contents of electronic communications stored for over six months based on this standard, as this Court has explained, “the Sixth Circuit has held that the Fourth Amendment applies to the contents of emails and thus that a warrant, issued upon probable cause, is required to search or seize those communications.” Google,

, at *7 n.13 (citing United States v. Warshak,

(6th Cir. 2010)). Since 2013, the policy of the Department of Justice has been to use SCA warrants exclusively when compelling the disclosure of the contents of electronic communications.

(citing H.R. Rep. No. 114-528, at 9 (2016)). 29 § 2703(d) orders and applications in support thereof. Nevertheless, the SCA explicitly relieves

the government of any obligation to notify a subscriber or customer about the compelled

disclosure pursuant to an SCA warrant, see

(b)(1)(A), and authorizes delayed

notification to the subscriber of compelled disclosure pursuant to a § 2703(d) order, see id. §

2705(a). In addition, the SCA authorizes the government to seek an order requiring the provider

not to disclose to the subscriber, “for such period as the court deems appropriate,” that the

government had compelled disclosure of records, upon a showing that an enumerated adverse

result may occur. Id. § 2705(b).

C. Analysis

The petitioners now seek, as prospective relief, publication, for all PR/TT and SCA

warrant and § 2703(d) applications, of “case number[s] and certain associated docket

information, including the case name, date of application, and magistrate judge to whom the

matter is assigned,” as well as periodic unsealing of dockets that no longer require secrecy.

Pet’rs’ Suppl. Mem. Supp. Pet. (“Pet’rs’ Mem.”) at 33–35, 39–40, 41–42, ECF No. 47. As to

retrospective relief, the petitioners seek extracted information from all sealed PR/TT matters that

the USAO initiated since 2008, rather than only from a ten percent sample of such matters, plus

“case numbers and certain associated docket information for [§ 2703(d)] matters filed from 2008

to the present.” Id. at 36, 40. The petitioners do not seek extracted information from materials

related to § 2703(d) applications, nor do the petitioners seek any retrospective relief as to SCA

warrants. Id. at 40, 42–43.23 They contend that both the First Amendment and the common law

23 The petitioners acknowledge “that because Section 2703(d) Materials currently under seal may include grand jury-related information subject to Rule 6, broader unsealing (or extraction of information from sealed filings) for Section 2703(d) matters would require document-by-document review and pose other practical challenges.” Pet’rs’ Mem. at 40. The petitioners also acknowledge that the lack of any reliable method to identify SCA warrant 30 grant a right of access to these surveillance materials.

As explained below, the petitioners’ First Amendment claim fails, however, because the

prerequisite of showing a longstanding tradition of public access simply does not exist as to the

PR/TT and SCA materials at issue. Nevertheless, the petitioners’ common law claim succeeds,

albeit not to the full extent requested by the petitioners, as the materials at issue indisputably are

judicial records, and the Hubbard factors, which govern decisions on whether to maintain

documents under seal in the D.C. Circuit weigh in disclosure’s favor, in light of the changes

recently adopted by the USAO and Clerk’s Office in the processing of such materials.

1. First Amendment

To satisfy the First Amendment right of access test’s first prong requires a court to

conclude that “an ‘unbroken, uncontradicted history’ of openness” exists, Brice,

,

with respect to SCA warrant, § 2703(d), and PR/TT materials in “particular,” Press-Enter. II,

. Historical practice, as well as the PRA and SCA’s text and statutory context,

show that no such tradition of openness exists with respect to the sealed materials the petitioners

seek to unseal and disclose. Nor can the petitioners rely on search warrants’ judicially-

recognized history of openness, as none of the materials to which the petitioners seek access—

not even SCA warrants—are analogous to traditional search warrants issued under Rule 41 of the

Federal Rules of Criminal Procedure. For these reasons, the petitioners cannot satisfy the

“experience and logic” test’s prong, and so cannot prevail on their First Amendment right of

access claim.

materials currently under seal within the CM/ECF system would cause any unsealing or extraction of such materials to yield “under-inclusive information” that will not “provide the public meaningful insight into government electronic surveillance practices.”

at 41–42. 31 SCA materials historically have not been publically available. The petitioners do not

dispute this fact, instead acknowledging that such materials “routinely” are “maintained under

seal,” Pet’rs’ Mem. at 1, and that SCA warrants and § 2703(d) materials “are frequently sealed

and kept under seal indefinitely,” depriving “the public [of] information as to the number of SCA

search warrants and Section 2703(d) orders issued by district courts in any given time period.”

Id. at 4. The petitioners also concede that the “unsealing” of PR/TT orders and related materials

“is in practice uncommon, and [that] judicial records regarding PR/TT devices, including basic

docket information, are typically shielded from public scrutiny indefinitely.” Id. at 3.

Statutory text and context likewise show that ECPA materials generally have not

traditionally been available to the public. ECPA consists of three titles—Title I, amending the

wiretap statute, which is not at issue here; Title II, the SCA; and Title III, the PRA. See ECPA,

; S. Rep. No. 99–541 (1986), at 3; Google,

, at *6 n.9. The

PRA and wiretap statute each provide for default indefinite sealing of surveillance orders. See

(8)(b) (“Applications made and orders granted under [the wiretap statute] shall

be sealed by the judge.”), 3123(d) (“An order authorizing or approving the installation and use of

a pen register or a trap and trace device shall direct that . . . the order be sealed until otherwise

ordered by the court.”). The wiretap statute also provides for default sealing of wiretap

applications, while the PRA imposes default nondisclosure obligations on third parties who own

or lease facilities to which PR/TT devices are attached or who are obligated to assist the

government in installing such devices.

§§ 2518(8)(b), 3123(d)(2). Although the SCA

contains no similar default sealing or nondisclosure provisions, the SCA authorizes the

government to seek such nondisclosure and, in practice, the government has “always been able to

restrict access” to SCA warrants and § 2703(d) orders “by requesting a sealing order, regardless

32 of the statutory default,” United States v. Appelbaum (In re U.S. for an Order Pursuant to

(D)),

, 291 n.9 (4th Cir. 2013) (quoting Times Mirror Co. v.

United States,

(9th Cir. 1989)), and to delay or preclude a notification to a

subscriber or customer of an SCA warrant or § 2703(d) order’s existence, see

(a)–(b).24

The SCA, moreover, does not exist in isolation, but is nestled between the PRA and

wiretap statute within a statutory framework that broadly prioritizes law enforcement’s need for

secrecy over the public’s interest in transparency. Indeed, one commentator urging ECPA’s

reform has mused that “[t]hrough a potent mix of indefinite sealing, nondisclosure (i.e.,

gagging), and delayed-notice provisions, ECPA surveillance orders all but vanish into a legal

void.” Stephen W. Smith, Gagged, Sealed & Delivered: Reforming ECPA’s Secret Docket, 6

HARV. L. & POL’Y REV. 313, 314 (2012).25

The petitioners argue that the absence of any longstanding tradition of openness as to

materials relating to ECPA materials generally or SCA materials, in particular, does not defeat

their First Amendment right of access claim, given ECPA’s relatively recent vintage. Pet’rs’

Mem. at 22–23. Instead, the petitioners contend that courts should evaluate ECPA procedures

“by the historical tradition of access applicable to an older, analogous process—in this case,

search warrants.”

The First Amendment may create a right of access to a procedure that has

24 The government may obtain an order delaying or precluding notification to a subscriber or customer of an SCA warrant or § 2703(d) order’s existence upon a showing “that there is reason to believe” that notification would result in “endanger[ment of] the life or physical safety of an individual,” “flight from prosecution,” “destruction of or tampering with evidence,” “intimidation of potential witnesses,” or “seriously jeopardizing an investigation or unduly delaying a trial.”

(a)(1)–(2), (b). Given the posture of incipient criminal investigations when the government uses SCA authorities to gather evidence, this standard, in practice, often is easily met. 25 Indeed, this Court is aware of only one other district court—the U.S. District Court for the Eastern District of Virginia—that systematically provides the public with limited information about matters involving § 2703(d) and PR/TT applications. See supra note 8. 33 no historical counterpart, as “[a] new procedure that substituted for an older one would

presumably be evaluated by the tradition of access to the older procedure.” El-Sayegh,

. Although “affidavits submitted in support of search warrants are sometimes sealed to

protect the secrecy of an ongoing criminal investigation,” Hubbard,

n.84, the

public has indeed had access to post-execution search warrant materials. “Frequently—probably

most frequently—the warrant papers including supporting affidavits are open for inspection by

the press and public in the clerk’s office after the warrant has been executed.” Baltimore Sun

Co. v. Goetz,

(4th Cir. 1989); see also Times Mirror Co.,

(“[M]ost search warrant materials routinely become public.”); In re Search Warrant for

Secretarial Area Outside Office of Gunn,

(8th Cir. 1988) (“[A]lthough the

process of issuing search warrants has traditionally not been conducted in an open fashion,

search warrant applications and receipts are routinely filed with the clerk of court without seal.”);

In re N.Y. Times Co. for Access to Certain Sealed Court Records,

(D.D.C.

2008) (“[P]ost-investigation warrant materials . . . have historically been available to the public .

. . . [W]arrant applications and receipts are routinely filed with the clerk of court without seal.”).

The “routine practice” in this Court “is to make [search] warrant materials publicly available

after a search has been executed and a return is available,” although “in a particular case a party

may file a motion to seal the warrant materials even after a search is executed.”

at 88 n.8.

To evaluate SCA procedures in light of executed search warrants’ historical tradition of

openness, however, is an inapposite analogy. Analytical substitution of one judicial procedure

for another is appropriate only where the procedure to which petitioners assert a right of access is

“new.” El-Sayegh,

. The SCA, as enacted as part of ECPA, is over 31 years old.

See generally ECPA,

. Thus, whether SCA orders are of such recent vintage as to

34 require analytical substitution of Rule 41 search warrants is doubtful.

More fundamentally, analytical substitution is appropriate only where “[a] new procedure

[] substituted for an older one.” El-Sayegh,

. First Amendment analysis “look[s]

to the substance of [the government’s] power[s] rather than how [an] Act nominally refers to

those powers.” Big Ridge, Inc. v. Fed. Mine Safety & Health Review Comm’n,

(7th Cir. 2013) (prioritizing substance over form in Fourth Amendment analysis); cf. R.J.

Reynolds Tobacco Co. v. Shewry,

(9th Cir. 2005) (rejecting an “approach

[that] would elevate form over substance and . . . enable the government to dictate the First

Amendment result simply by manipulating the agency in the decision-making process” (internal

quotation marks omitted)). To determine whether the history of one judicial procedure may be

substituted for another, then, requires determining the procedures’ degree of functional

similarity, rather than looking to labels. SCA orders, even SCA warrants, are functionally unlike

traditional search warrants and more akin to subpoenas, to which no recognized First

Amendment right of access attaches, in two significant respects: their method of execution and

opportunity for pre-disclosure challenge. SCA orders thus do not analytically substitute for

search warrants, meaning that the petitioners cannot rely on post-execution search warrant

materials’ “unbroken, uncontradicted history of openness,” Brice,

, to support

their asserted First Amendment right of access to SCA materials.

“A warrant,” as the Fourth Circuit has explained, “is a judicial authorization to a law

enforcement officer to search or seize persons or things.” In re Subpoena Duces Tecum,

(4th Cir. 2000). A search warrant “is issued without prior notice and is executed,

often by force, with an unannounced and unanticipated physical intrusion,” so as “[t]o preserve

advantages of speed and surprise.”

The target, moreover, has no opportunity to challenge a

35 search warrant “before the warrant issues”—a judicial probable cause determination is the only

pre-execution check on the government’s ability to obtain information via a warrant.

(“The

demonstration of probable cause to ‘a neutral judicial officer’ places a ‘checkpoint between the

Government and the citizen’ where there otherwise would be no judicial supervision.” (quoting

Steagald v. United States,

(1981)). For these reasons, search warrants entail

an “intrusion [that] is both an immediate and substantial invasion of privacy.”

A subpoena operates differently. Whereas a search warrant entitles government agents to

inspect and/or rifle through targets’ “persons, houses, papers, and effects,” U.S. CONST. amend.

IV, a subpoena instead directs a target to “comply” with a “demand” for information, Subpoena

Duces Tecum,

; see also FED. R. CRIM. P. 17(a), (c). A subpoena “commences an

adversary process during which the person served with the subpoena may challenge it in court

before complying,” meaning that “judicial process is afforded before any intrusion occurs.”

Subpoena Duces Tecum,

; see also FED. R. CRIM. P. 17(c)(2) (“On motion made

promptly, the court may quash or modify the subpoena if compliance would be unreasonable or

oppressive.”). A subpoena thus does not subject a target to “the immediacy and intrusiveness of

a search and seizure conducted pursuant to a warrant.” Subpoena Duces Tecum,

.

These distinctions between search warrants and subpoenas—(1) execution via government

agents’ physical presence and search or a recipient’s individual compliance, and (2) the absence

or provision of an ex ante opportunity to challenge the disclosure sought—are so significant that

they form the basis for the search warrant’s “probable cause” requirement.

at 348–49.

An SCA warrant, though a warrant in name, is more analogous to a subpoena than to a

traditional search warrant with respect to (1) method of execution and (2) ex ante opportunity to

challenge compelled disclosure. As to method of execution, an SCA warrant does not authorize

36 the government to search and seize “persons or things,” in a search warrant’s manner,

,

but rather requires a provider’s “disclosure . . . of the contents of [certain] communication[s,]”

(a), in a subpoena’s manner. As this Court has recently explained:

SCA warrants are not like the search warrants used in the physical world: they are ‘executed’ when a law enforcement agent delivers (sometimes by fax) the warrant to the service provider. The service provider, not the agent, performs the ‘search’; the service provider ‘produces’ the relevant material to the agent; the user associated with the inbox often never learns that his inbox has been ‘searched.’

Google,

, at *18 (quoting Paul K. Ohm, Parallel-Effect Statutes and E-Mail

“Warrants”: Reframing the Internet Surveillance Debate, 72 GEO. WASH. L. REV. 1599, 1610–

11 (2004)) (internal alterations and quotation marks omitted). As to an ex ante opportunity to

challenge compelled disclosure, a recipient may move to quash an SCA warrant, see In re

Warrant to Search a Certain E-Mail Account Controlled & Maintained by Microsoft Corp.,

(S.D.N.Y. 2014) (“Microsoft I”), rev’d,

(2d Cir. 2016)

(“Microsoft II”), reh’g denied,

(2d Cir.) (“Microsoft III”), cert. granted sub nom.

United States v. Microsoft Corp.,

(2017), and need not disclose any information

sought until the adversary process completes. A traditional search warrant, in contrast, generally

provides the target neither prior notice of the search and/or seizure nor ex ante opportunity to

quash. See Subpoena Duces Tecum,

.

In short, as other Judges have recognized, the government executes an SCA warrant in a

manner more akin to that of a subpoena than to that of a traditional search warrant. See, e.g.,

Microsoft III,

(Jacobs, J., dissenting from the denial of rehearing en banc)

(observing that an SCA warrant “functions as a subpoena though the [SCA] calls it a warrant”);

(Raggi, J., dissenting from the order denying rehearing en banc) (“[An SCA warrant]

does not authorize federal agents to search any premises or to seize any person or materials,” but 37 “authorizes a federal agent to require a service provider to disclose materials in its possession. . .

. A search warrant is executed with respect to a place . . . [b]y contrast, . . . a § 2703(a) warrant is

executed with respect to a person.”); Microsoft II,

(Lynch, J., concurring) (“[An

SCA] ‘warrant’ . . . does not appear to be a traditional search warrant . . . . [T]he SCA does not . .

. contain language implying . . . that the warrant . . . authorizes government agents to go to the

premises of a service provider without prior notice to the provider, search those premises until

they find the computer, server or other device on which the sought communications reside, and

seize that device . . . . Rather, the statute expressly requires the ‘warrant’ not to authorize a

search or seizure, but . . . to allow the government to require a service provider to disclose the

contents of certain electronic communications.” (alterations, emphasis, and internal citation and

quotation marks omitted)); Microsoft I,

(“Although section 2703(a) uses

the term ‘warrant’ and refers to the use of warrant procedures, the resulting order is not a

conventional warrant . . . . [I]t is executed like a subpoena in that it is served on the ISP in

possession of the information and does not involve government agents entering the premises of

the ISP to search its servers and seize the e-mail account in question.”).

Other aspects of the SCA confirm that an SCA warrant is in substance more analogous to

a subpoena than to a traditional search warrant. First, “[p]arallel provisions” of § 2703 “permit

the government to require equivalent disclosure of” identical categories of “communications by

the service provider” through an SCA warrant, § 2703(d) order, or subpoena. Microsoft II,

(Lynch, J., concurring). “Indeed, the various methods of obtaining the

communications . . . are not merely parallel” but “all depend on the same verbal phrase”—

“disclose” or “disclosure”—constituting “alternative means, applicable in different

circumstances, to require the service provider to disclose the communications.”

(alterations

38 and internal quotation marks omitted); see

(a), (b)(1), (c)(1)–(2). Second, §

2703 uses the term “warrant” rather than “search warrant” in all but one instance, and then only

with respect to a “search warrant . . . requiring disclosure by a provider.”

(g)

(emphasis added). Third, § 2703 incorporates only those procedures of Federal Rule of Criminal

Procedure 41 that govern a warrant’s issuance, not those addressing execution. Id. § 2703(a); see

Google,

, at *8 (“The applicable procedures [governing an SCA warrant’s

issuance] are those found in Federal Rule of Criminal Procedure 41.”).26

For these reasons, SCA warrants in fact “are not search warrants at all and to call them

such confuses legal terminology.” Google,

, at *18 (quoting Ohm, supra, at

1611). “The structure of § 2703 . . . evinces an intent to create a distinct procedural mechanism

from a traditional Rule 41 ‘search warrant.’” Id. To the extent SCA warrants are analogous to

any longstanding procedures used by the government to collect evidence in criminal

investigations, they are analogous to grand jury subpoenas, for the reasons explained above. No

historical tradition of public access to grand jury subpoenas exists. See FED. R. CRIM. P.

6(e)(2)(B) (prohibiting prosecutors, grand jurors, court reporters, and others from “disclos[ing] a

matter occurring before the grand jury”); Press-Enter. II,

(“[G]rand jury

proceedings have traditionally been closed to the public and the accused.”); Douglas Oil Co. of

Cal. v. Petrol Stops Nw.,

, 218 n.9 (1979) (“Since the 17th century, grand jury

26 Indeed, this Court’s recent decision holding that an SCA warrant operates to compel a domestic service provider to produce records, which the provider may store overseas in whole or part, similarly concluded that SCA warrants are akin to mere “subpoena[s] requiring the production of documents” domestically, rather than to search “warrants for extraterritorial searches,” which “courts may not issue.” Google,

, at *14–15 (quoting FTC v. Compagnie De Saint–Gobain–Pont-a-Mousson,

(D.C. Cir. 1980)). The Supreme Court recently granted certiorari in United States v. Microsoft Corp., which will resolve “[w]hether a United States provider of email services must comply with a probable-cause-based warrant issued under 18 U.S.C. 2703 by making disclosure in the United States of electronic communications within that provider’s control, even if the provider has decided to store that material abroad.” See

(U.S. Oct. 16, 2017) (No. 17-2). 39 proceedings have been closed to the public, and records of such proceedings have been kept from

the public eye. The rule of grand jury secrecy was imported into our federal common law and is

an integral part of our criminal justice system.”); In re Sealed Case,

(D.C. Cir.

2000) (“[T]he grand jury context presents an unusual setting where privacy and secrecy are the

norm.”); In re Dow Jones & Co.,

(D.C. Cir. 1998) (“[T]here is no First

Amendment right of access to grand jury proceedings.”).

Section 2703(d) and PR/TT orders are even less analogous to traditional search warrants

than are SCA warrants, differing in both execution and applicable legal standard. An § 2703(d)

order, like an SCA warrant, requires a provider to disclose information sought rather than

authorizing the government to conduct a physical search, and allows a recipient an opportunity to

quash prior to complying with the production demanded.

(b)–(d). Unlike an

SCA search warrant, a § 2703(d) order’s issuance need not comply with Rule 41 procedures or

Rule 41’s “probable cause” standard, but instead requires only “specific and articulable facts

showing that there are reasonable grounds to believe” the information sought is “relevant and

material to an ongoing criminal investigation.” Id. § 2703(d). A PR/TT order likewise does not

authorize government agents physically to search or seize “persons or things,” Subpoena Duces

Tecum,

, in the manner of a search warrant, see Smith v. Maryland,

(1979) (rejecting the claim that “a pen register’s . . . installation and use constitute[s] a

‘search’”), although such orders authorize the government physically to install a PR/TT device at

a “telephone line or other facility,” and the showing required for issuance of a PR/TT order is

mere relevance “to an ongoing criminal investigation,”

(a)(1), (b)(1)(A).

In sum, no historical tradition of openness exists as to PR/TT, SCA warrant, or § 2703(d)

materials, and such orders are too functionally unlike search warrants in issuance, execution or

40 challenge procedures to justify the latter’s analytical substitution in evaluating the historical

aspect of the petitioners’ First Amendment right of access claim. The petitioners’ failure to show

an “‘unbroken, uncontradicted history’ of openness,” Brice,

, as to these

statutorily authorized methods under the PRA and SCA for the government to gather evidence in

criminal investigations precludes petitioners from prevailing on their First Amendment right of

access claim, see In re Reporters Comm. For Freedom of the Press,

(D.C.

Cir. 1985) (“[B]oth these [‘history’ and ‘logic’] questions must be answered affirmatively before

a constitutional requirement of access can be imposed.”), making unnecessary any consideration

of the claim’s other elements.

2. Common Law

The petitioners also argue that the common law affords them a right of access to the

PR/TT and SCA materials at issue. Pet’rs’ Mem. at 15–21. The limited scope of the petitioners’

claim is significant—the petitioners seek access only to PR/TT, SCA warrant and § 2703(d)

materials from closed criminal investigations, and only to those portions of such materials that

do not reveal personally identifying information. As such, the USAO does not contend that

disclosure would impede an ongoing criminal investigation or reveal information that would

impinge on personal privacy. For the reasons that follow, the Hubbard factors weigh in favor of

a prospective common law right of access to the materials to which the petitioners seek access, in

light of administrative changes recently adopted by both the USAO and the Clerk’s Office. The

significant burdens on the USAO and Clerk’s Office that would attend recognizing a common

law right of access to previously initiated PR/TT and SCA matters, however, properly are

cognizable as particularized interests that weigh heavily against further retrospective relief than

has already been provided. 41 a. The Materials At Issue Are Judicial Records

A presumptive common law right of access attaches only to documents that are “public

record[s.]” Wash. Legal Found.,

(internal quotation mark omitted). The USAO

“[a]ssum[es] for the sake of argument” that the PR/TT and SCA materials at issue satisfy this

requirement. Gov’t’s Opp’n at 25, ECF No. 51. The USAO is correct to so assume. “[W]hether

something is a judicial record depends on ‘the role it plays in the adjudicatory process.’” Metlife,

Inc.,

(quoting SEC v. Am. Int’l Grp.,

(D.C. Cir. 2013)). PR/TT and

SCA applications and orders are judicial records, as “it is commonsensical that judicially

authored or created documents are judicial records.” Appelbaum,

. A document

filed with a court (1) that “can affect a court’s decisionmaking process,” (2) “which the

parties hope to influence the court,” and (3) “upon which the court must base its decision”

likewise is a judicial record. Metlife, Inc.,

. PR/TT and SCA applications and

any supporting materials, which the government submits to obtain the related orders and on

which courts rely in deciding whether to enter such orders, undoubtedly meet this standard. See

Appelbaum,

(“[T]he derivative § 2703(d) motions are ‘judicial records’ because

they were filed with the objective of obtaining judicial action or relief pertaining to § 2703(d)

orders.”); accord Goetz,

(“[A]ffidavits for search warrants are judicial records.”).

A “common law presumption of access [thus] attaches to” PR/TT and SCA orders and related

materials, Appelbaum,

, which the government can rebut only by showing

“competing interests” that compel a “conclu[sion] that justice [] requires” maintaining a seal,

Metlife,

. The Hubbard factors govern this analysis.

b. Overview: Hubbard Factor Analysis

The petitioners seek access to information concerning the government’s reliance on 42 statutory authority under the PRA and SCA to gather evidence in criminal investigations using:

(1) PR/TT devices, (2) § 2703(d) orders, and (3) SCA warrants. The type of information sought

can be divided into three categories: (1) docket information, including the matter number and

caption, the dates the application was filed and entered onto the docket, the assigned case type

(e.g., MC, CV, CR, MJ) and event type (e.g., “Application for Pen Register”), and the assigned

Magistrate Judge, see, e.g., Order and Notice to the Parties, Attach. A, List of Misc. Case

Numbers With Assoc. Docket Info., ECF No. 22-1; (2) fifteen specified categories of

information extracted from applications and orders for such materials, see, e.g., Extraction Chart;

and (3) unsealed materials filed in a particular docket, with such redactions needed to protect

information implicating privacy and law enforcement investigative interests. Having already

obtained docket information for USAO-initiated PR/TT matters over a nine year period, as noted

supra Part I.C, the petitioners continue to seek retrospective access to extracted information for

all PR/TT matters and docket information for § 2703(d) matters. They also seek prospective

access to real-time docket information and full unsealing, upon an investigation’s closure, with

appropriate redactions, of PR/TT, § 2703(d), and SCA warrant materials, with persistent

monitoring by the Court. Pet’rs’ Mem. at 30–43. Significantly, by contrast to their initial

petitions, they no longer seek retrospectively the full unsealing, with redactions, of such

materials. See id.

Resolving the petitioners’ common law right of access claim thus requires applying the

Hubbard factors to three separate variables: (1) the statutory authority relied upon for the

government’s application and related order; (2) the type of information sought, i.e., docket

information, extracted information, or full unsealing of materials; and (3) whether the petitioners

seek this information prospectively or retrospectively. To simplify this analysis, the prospective

43 aspect of the petitioners’ claim is considered first, followed by the claim’s retrospective aspect.

Consideration of the Hubbard factors, in light of the “‘strong presumption in favor of

public access to judicial proceedings,’” Metlife,

(quoting Hubbard,

), and the petitioners’ decision to disclaim any entitlement to materials whose disclosure

would impinge upon privacy or law enforcement investigative prerogatives, yields a conclusion,

due largely to the administrative changes recently adopted by the USAO and Clerk’s Office, that

the petitioners are entitled to prospective relief, albeit not all they request nor on a real-time

basis. The retrospective relief sought, however, involves to a much greater extent than the

prospective relief the imposition of substantial burdens on the USAO and the Clerk’s Office in

complying with any order requiring the unsealing and extraction of information from over two

thousand PR/TT matters, and compilation of docket information for over two thousand 2703(d)

matters. This burden, cognizable as a particularized Hubbard factor, weighs firmly against

allowing the petitioners additional retrospective access to the PR/TT and SCA materials at issue

beyond the significant access already granted.

c. Common Law Right To Prospective Access

The petitioners seek prospective access to “case number[s] and certain associated docket

information” in all PR/TT, SCA warrant, and § 2703(d) matters “including the case name, date

of application, and magistrate judge to whom the matter is assigned,” along with continuous

unsealing of all the records on the dockets that no longer need be maintained under seal. Pet’rs’

Mem. at 33–35, 39–40, 41–42. Given their request for unsealing, the petitioners do not seek

prospective extraction of any of the categories of information that the USAO extracted from the

2012 PR/TT matter sampling. See id. For the reasons that follow, the Hubbard factors weigh in

favor of some prospective access to docket information for PR/TT, § 2703(d) , and SCA warrant

44 matters, though not in favor of the timetable for disclosure of such information requested by the

petitioners nor in favor of the continuous unsealing of the underlying materials on dates certain,

subject to rigorous judicial monitoring.

i. Need for Public Access to the Documents at Issue

The need for public access to the documents at issue is the first Hubbard factor a court

weighs in determining whether to unseal documents.

. The USAO concedes

“that transparency is important,” and objects only to additional retrospective disclosure given the

“disclosures that have been made to date,” not to additional prospective disclosure. Gov’t’s

Opp’n at 33. Transparency as to docket information for PR/TT, SCA warrant, and § 2703(d)

matters “is necessary for journalists to inform the public [of], and for the public to understand,

the USAO’s use of [these statutorily-authorized surveillance] devices” and “the role of the courts

in overseeing their use.” Pet’rs’ Mem. at 36. “Such information, if provided for all of the sealed

PR/TT[, SCA warrant, and § 2703(d)] matters filed by the USAO, will shed light on, inter alia,

how frequently judges deny [such surveillance] applications, the types of crimes that are

investigated using [such] devices, how frequently orders authorizing the installation and[/or] use

of [such] devices are extended, and how frequently [such] applications have been accompanied

by other types of requests.” Id. at 36–37. These points are well-taken, and not disputed by the

government. Thus, the first Hubbard factor thus weighs in favor of prospective disclosure of

PR/TT, SCA warrant, and § 2703(d) matter docket information.

ii. Extent of Previous Public Access to the Documents

The extent of the public’s previous access to the documents at issue is the second factor

to be weighed in determining whether to unseal documents. Hubbard,

.

“[P]revious access has been considered relevant to a determination whether more liberal access 45 should be granted to materials formerly properly accessible on a limited basis through legitimate

public channels and to a determination [of] whether further dissemination of already accessible

materials can be restrained.”

(internal citation omitted). This factor is typically applied to

actual, extant documents and has limited usefulness in evaluating the docket information the

petitioners seek prospectively to disclose since, obviously, the public could not possibly have

enjoyed access to documents that have not yet been filed with or entered by the Court.

Nonetheless, as the petitioners observe, “[t]he public is well aware that law enforcement

uses PR/TT devices, search warrants under the SCA, and Section 2703(d) orders in criminal

investigations.” Pet’rs’ Mem. at 18–19. The public also has access to docket and limited

extracted information concerning the USAO’s filing of PR/TT applications from 2008 through

2016 in this Court, which information has been made publicly available in this litigation, see

PR/TT Lists, as well as to the number of matters that both the USAO and DOJ filed during that

period connected to case types in the CM/ECF system associated with § 2703(d) and SCA

warrant applications, see SCA Warrant Notice; Section 2703(d) Notice, respectively. In the

petitioners’ view, such docket information provides valuable information to the public primarily

due to the light shed on broad trends and patterns in the USAO’s use of PR/TT orders, § 2703(d)

orders, and SCA warrants. Pet’rs’ Mem. at 12–13, 18.

The petitioners seek disclosure of docket information about PR/TT, § 2703(d), and SCA

warrant matters on a continuous, real-time basis, and point to the U.S. District Court for the

Eastern District of Virginia as doing so. See Pet’rs’ Mem. at 32–33, 37–40. Indeed, the Eastern

District of Virginia does make publicly available on a real-time basis limited docket information

as to PR/TT and § 2703(d) applications (but not as to SCA warrant applications), apparently

without any adverse results. See Appelbaum,

. Yet, such real-time docket

46 information necessarily implicates pending, active criminal investigations, while the petitioners

here have from the outset limited their request to closed investigations, a limitation better

respected by delaying disclosure of the docket information for at least six months. Moreover, the

prospective docket information sought by the petitioners here is more extensive than that

provided in the Eastern District of Virginia on a real-time basis, and, consequently, this

commendable example from a single neighboring district court simply does not provide a

sufficiently parallel docket disclosure to establish this Hubbard factor.27 Thus, the second

Hubbard factor weighs against any common law right of access claim to a continuous, real-time

stream of the more fulsome docket information relating to PR/TT, § 2703(d), and SCA warrant

matters requested by the petitioners.

iii. Fact of Objection and Objector’s Identity

The fact that someone has objected to the documents’ unsealing, and the objector’s

identity, is the third Hubbard factor to be weighed in reviewing motions to unseal.

. No individual or entity, other than the USAO, has objected to prospective disclosure of the

PR/TT, § 2703(d), and SCA warrant matter docket information at issue. See Pet’rs’ Mem. at 19.

The USAO asserts that the scope of the retrospective relief that the petitioners seek makes this

factor’s application impossible or unworkable, see Gov’t’s Opp’n at 34, but makes no similar

argument as to prospective disclosure. The third factor thus weighs in favor of a common law

right of access to the prospective disclosure of the docket information sought.

iv. Strength of Property and Privacy Interests Asserted

27 The Eastern District of Virginia discloses “assigned case numbers, the date of assignment, the presiding judge, and whether the case is sealed,” see Appelbaum,

, without providing information on the case caption, which can reveal additional information about an ongoing criminal investigation, and is information sought by the petitioners here as part of their prospective relief, see Pet’rs’ Mem. at 33, 39, 41. 47 The strength of any property and privacy interests asserted is the fourth Hubbard factor.

. No privacy or property interests are asserted with respect to the PR/TT, §

2703(d), and SCA warrant docket information the petitioners seek as prospective relief. Not

only has no individual or entity (other than the USAO) come forward to object to the petitioners’

request, but the petitioners expressly disclaim any right of access to personally identifiable

information, and agree to redaction “[t]o the extent personally identifiable information would

appear in any of the currently sealed docket information or other information that [p]etitioners

seek to have unsealed.” Pet’rs’ Mem. at 19. In this circumstance, the requested docket

information’s disclosure is unlikely to impinge upon personal privacy concerns.

Moreover, the USAO has recently adopted use of uniform captions for PR/TT, § 2703(d),

and SCA warrant matters that do not reveal, directly or indirectly, investigatory targets’ identities

and that facilitate disclosure, by avoiding the need to undertake the time-consuming and

burdensome task of reviewing each caption to redact such information. In these circumstances,

the fourth Hubbard factor thus weighs in favor of prospective disclosure of PR/TT, § 2703(d),

and SCA warrant docket information.

v. Possibility of Prejudice

Possibility of prejudice to an individual is the fifth Hubbard factor to be weighed in

reviewing a motion to unseal.

. Disclosing prospectively PR/TT, § 2703(d), and

SCA warrant docket information would prejudice no individual, as such information reveals no

personally identifiable information, due to the uniform captions adopted by the USAO. Nor

would disclosure prejudice the USAO, as the petitioners also disclaim any right of access to

information that would, if publicized, compromise an ongoing criminal investigation. See Pet’rs’

Mem. at 26–27. The fifth Hubbard factor thus weighs in favor of disclosure of the docket 48 information that the petitioners seek.

vi. Purposes for Which Documents Were Introduced

The purpose for which documents were introduced is the sixth, final, and “single most

important” Hubbard factor.

. The public’s entitlement to judicial records is

commensurate with the documents’ importance to the judicial proceeding in question. See

(concluding that the sixth factor weighed against a right of access to documents that “were not

determined by the trial judge to be relevant to the crimes charged,” “used in the subsequent

‘trial,’” or “described or even expressly relied upon by the trial judge in his decision on the

suppression motion,” and that were only “admitted in the criminal proceedings [] to assist the

court in its determination of whether the search and seizure were unlawfully overbroad.”). In

Hubbard, the Church of Scientology objected to the unsealing of papers that the defendants, who

were all Church officials or employees, introduced into the underlying criminal proceedings for

the sole purpose of contending that a government search and seizure had been unlawfully

overbroad.

at 297–98, 317–318. The Hubbard panel observed, in the context of that case’s

particular facts, that recognizing a right of access to the documents at issue would create the

perverse dynamic

[where]by the act of attempting to show the excesses of the search by the extent of the documents seized—documents which may not be relevant to criminal charges or necessary to trial—defendants . . . and nondefendant owners . . . will invite public dissemination of the contents of the documents and thereby impair the very privacy rights they seek to vindicate, regardless of the use ultimately made of the documents by the court.

.

Recognizing a common law right of access to prospective docket information here, in

contrast, would place no one in a similar bind. PR/TT, § 2703(d), and SCA warrant materials,

49 moreover, play a far more important role to judicial proceedings than did the documents at issue

in Hubbard. Each PR/TT, § 2703(d), or SCA warrant application is generally treated as a

separate judicial matter and initiates the assignment of a unique docket number.28 The

information to which the petitioners seek access thus serves a crucial purpose to—and are, in a

sense, the entire purpose of—the judicial proceedings in which they are docketed.

Even measuring PR/TT, § 2703(d), and SCA warrant materials’ importance relative to

the criminal case in which the USAO introduces a surveillance order’s fruits (and not all criminal

investigations result in charges being filed), documents that the USAO uses to obtain evidence

for presentation to the grand jury to obtain an indictment and/or to introduce at trial, serve an

important purpose to judicial proceedings. To be sure, docket information from PR/TT, §

2703(d), and SCA warrant matters perhaps are less important to judicial proceedings than are the

actual materials themselves. Even so, the sixth Hubbard factor weighs in disclosure’s favor.

* * *

In sum, five of six Hubbard factors, including the “single most important” such factor, id.

—need for public access to the documents at issue, fact of objection and objector’s identity,

strength of any property and privacy interests asserted, possibility of prejudice, and purposes for

which the documents were introduced—weigh in favor of prospective disclosure of PR/TT, §

2703(d), and SCA warrant matter docket information, while one factor—the extent of previous

public access to the documents—has limited applicability. The Court thus concludes,

considering the Hubbard factors together and as applied to the recently adopted administrative

changes in the USAO and this Court’s Clerk’s Office, that the common law affords the

28 Other entries in the dockets for these government applications include the orders granting or denying the application, any amended application, applications for extension (e.g., in a PR/TT matter), or a motion to seal. 50 petitioners a prospective right of access to the PR/TT, § 2703(d), and SCA warrant matter docket

information.29 The precise scope of such relief, which a recently-adopted Memorandum of

Understanding (“MOU”) between the Clerk of the Court and the USAO will more than provide,

is discussed infra Part II.D.

d. No Common Law Right To Additional Retrospective Access

The petitioners also seek retrospective relief in the form of public access to a different set

of materials than those to which they seek prospective access. Specifically, as to retrospective

relief, the petitioners seek: (1) to supplement the docket information already provided for PR/TT

matters for the nine-year period of 2008 through 2016 with similar docket information over the

same period for § 2703(d) matters; and (2) to compel the USAO to extract and disclose, as to all

USAO-filed PR/TT matters during the years 2008 through 2016, the fifteen categories of

information that the USAO provided as to the sampling of 2012 PR/TT matters. Pet’rs’ Mem. at

35–38. The petitioners do not seek extracted information concerning historical § 2703(d)

matters, and seek no retrospective relief whatsoever as to SCA warrants. Id. at 40, 42–43.

Hubbard’s generalized factors weigh in favor of retrospective access to PR/TT extracted

information and § 2703(d) docket information for essentially the same reasons they weigh in

favor of prospective relief, as discussed above. For example, the process of manually extracting

specified categories of information from closed PR/TT matters and providing such information

in chart form substantially eliminates any risk that information properly left under seal, such as

information bearing on personal privacy or law enforcement investigative prerogatives, will

29 The petitioners’ decision not to seek, as part of their requested prospective relief, extraction of specified categories of information, see supra, means that no occasion is presented to determine whether the common law entitles the petitioners to such relief. 51 inadvertently be disclosed due to a human redaction error.

Nevertheless, that Hubbard’s generalized factors weigh favorably toward retrospective

unsealing and disclosure is not dispositive. The retrospective relief inquiry also implicates a

particularized consideration that the petitioners’ claim for prospective relief does not implicate as

much, due to operational and administrative changes adopted recently by the USAO and Clerk’s

Office—namely, the enormous burden that complying with an order granting the retrospective

relief sought would impose on the USAO and Clerk’s Office. Under Hubbard, a district court

must consider any “particularized . . . interests” that a party may assert in support of maintaining

documents under seal.

. These burdens are described below for the two parts of

retrospective relief the petitioners seek: (1) extracted information from the 2,248 PR/TT matters

filed by the USAO over nine years from 2008 through 2016; and (2) docket information from the

roughly 2,636 § 2703(d) matters filed by the USAO and DOJ components over the same period.

i. Estimated Burden of Extracting Information From 2,248 PR/TT Matters

The USAO estimates that completing the extraction process for one hundred percent of

PR/TT matters that it initiated between the years 2008 through 2016, minus the twenty-four 2012

PR/TT applications from which information has already been extracted, would take roughly 720

hours. 6th Jt. Rpt. ¶ 10 n.2. To be sure, extraction, though somewhat less burdensome than

unsealing and redacting actual PR/TT documents, nonetheless is a time-consuming process.30

Though disputed by the petitioners, the time estimate given by the USAO appears, if

anything, to underestimate the time commitment that extracting information from one hundred

30 The process of redaction and unsealing would require the USAO to scrutinize carefully every page of every document filed in each PR/TT matter in order to ensure that no information bearing on personal identification or ongoing law enforcement concerns, which properly should be maintained under seal, inadvertently is disclosed. 3 rd Jt. Rpt. ¶ 3. 52 percent of PR/TT matters that the USAO initiated from 2008 through 2016 would require.

According to the Clerk’s Office, the USAO filed a total of 2,248 PR/TT applications during this

period. See generally PR/TT Lists. Assuming the USAO can extract information from twenty-

four PR/TT matters in eight hours—a simplifying assumption made by the USAO, 6th Jt. Rpt. ¶

10 n.2—extracting categories of information from all 2,248 matters the USAO filed over nine

years, minus the 24 sample 2012 PR/TT matters already extracted, would take over 741 hours.

Moreover, the USAO represented to the Court that extracting information from the 24 sample

PR/TT matters actually took roughly eight and a half, rather than eight, hours—an estimate the

Court has no reason to doubt. Id. ¶ 10. Assuming the USAO can extract information from

twenty-four PR/TT matters in eight and a half hours, extracting categories of information from

2,248 matters, minus the 24 sample PR/TT matters from 2012 already extracted, would take

approximately 788 hours—nearly 33 days working around the clock nonstop, or nearly twenty

40-hour workweeks. Complying with such a mandate would divert significant amounts of

valuable AUSA time and resources.

ii. Estimated Burden of Producing § 2703(d) Docket Information

Producing requested lists of § 2703(d) matter docket information for the relevant nine

year period, meanwhile, would impose similarly significant resource burdens on the Court and

Clerk’s Office by consuming substantial amounts of staff time—in particular, time necessary to

ensure that information properly left under seal is not inadvertently disclosed. The petitioners

appear to assume that unsealing docket information for 2,636 § 2703(d) matters, see Section

2703(d) Notice, is a trivial clerical task, as easily performed as pressing the “print” button for a

53 list of CM/ECF matters generated by the search criteria. 31

In reality, the process is substantially more time- and resource-intensive than that. The

task of assembling lists of historical § 2703(d) matters would require multiple Court and Clerk’s

Office staff members to scrutinize meticulously every entry on each page of every list released to

purge these lists of any information bearing on personal identification or law enforcement

investigative concerns. Completing this painstaking process of examination and redaction for

the PR/TT Lists took several Court and Clerk’s Office personnel days to complete. The lack of

standardized case names or captions on applications and orders filed during the relevant nine-

year period makes this task particularly challenging, as these captions have sensitive information

bearing on personal identification peppered throughout.

Moreover, prior to the standardization of § 2703(d) captions, see infra Part II.D, such

captions not infrequently would reference not § 2703(d) itself but only

(b), the

SCA’s delayed notice provision. As a practical consequence, providing accurate and

comprehensive § 2703(d) docket information would require carefully reviewing each § 2705(b)

application that the USAO had filed to ascertain whether the application actually pertained to

non-disclosure of a § 2703(d) order, a task fraught with peril given that § 2705(b)’s

nondisclosure provision is available for both § 2703(d) orders and to grand jury subpoenas,

which reveal “matter[s] occurring before the grand jury” and therefore are protected by Rule

6(e)’s secrecy protections. See Fed. R. Crim. P. 6(e)(2). Ensuring that disclosure of § 2703(d)

materials would not inadvertently reveal confidential grand jury matters would require Court and

Clerk’s Office staff to undertake additional manual, time-consuming review.

31 To put this figure in context, the USAO initiated nearly 400 more § 2703(d) matters during the relevant nine-year period than PR/TT matters. Compare PR/TT Lists with Section 2703(d) Notice. 54 These practical challenges should be minimized in future efforts to disclose docket

information from USAO-initiated PR/TT, § 2703(d), and SCA warrant matters. The

standardization of caption information adopted by the USAO for new PR/TT, § 2703(d), and

SCA warrant applications and administrative steps taken by the Clerk’s Office in assigning

different CM/ECF case type designations to various sealed criminal investigative matters,

described in further detail infra Part II.D, is intended to facilitate the unsealing and disclosure of

docket information by predictably placing specified categories of information in designated

locations within the caption and by enabling retrieval of specific types of sealed materials from

CM/ECF. Yet, such administrative burdens are unavoidable as to disclosure of docket

information concerning historical § 2703(d) and SCA warrant applications, and unwarranted in

light of the unreliability and under-inclusiveness of the identification of these materials by the

Clerk’s Office, as detailed supra Part I.A; see 7th Jt. Rpt. ¶ 15 (acknowledging that a list of SCA

warrant matters “would be under-inclusive,” given the limitations of the CM/ECF system and

other administrative challenges). Thus, the same reason that the petitioners give for not

requesting retrospective docket information for SCA warrant materials, see supra note 23, and

for eschewing extracted information for ten percent of PR/TT materials, see infra Part

II.C.2.d.iii—that the results would fall short of “provid[ing] the public meaningful insight into

government electronic surveillance practices,” Pet’rs’ Mem. at 41–42—applies here.

iii. Considering Burdens On Clerk’s Office and USAO As Hubbard Specialized Factors

As described above, the burdens on the Clerk’s Office and the USAO of the petitioners’

requested retrospective relief, delimited as it is, remains considerable. At the same time, this

burden is not evaluated on a blank slate but instead against the backdrop of the amount of

information already publicly disclosed during the course of this litigation. Specifically, to date, 55 the petitioners and the public have been provided with (1) the total numbers of USAO-filed

PR/TT matters during the period of 2008 through 2016; (2) the total numbers of § 2703(d) and

SCA warrant matters, retrieved using certain search criteria, filed by the USAO and DOJ

components during this period; (3) certain docket information concerning PR/TT matters the

USAO initiated during this period; (4) over 100 pages of redacted documents from four

representative sample PR/TT matters from 2012; and (5) fifteen categories of extracted

information from a representative sample of ten percent of USAO-filed PR/TT matters from

2012. These disclosures have already provided an unprecedented level of transparency into the

process of judicial review of the USAO’s use of PR/TT and SCA authorities to collect evidence

in criminal investigations, and enables the petitioners to inform and educate the public. The

question now is whether the common law right of access, as mediated through application of the

Hubbard particularized interests, requires more?

The petitioners argue that any administrative burden on the USAO or Clerk’s Office that

would attend granting the full scope of the retrospective relief sought “is not a compelling or

countervailing interest sufficient to overcome the public’s . . . common law rights of access.”

Pet’rs’ Mem. at 30. Hubbard, however, specifically instructs district courts to consider any

“particularized . . . interests” asserted against unsealing,

, and such interests may,

under appropriate circumstances, include the burden that complying with an order granting such

relief would impose. The petitioners observe, correctly, that courts generally do not recognize

such burden as a relevant factor in deciding the scope of a common law right of access to judicial

records. Pet’rs’ Mem. at 29–30 (citing United States v. Camick,

, 1213 n.5 (10th

Cir. 2015) (denying a motion to seal supplemental record, which allegedly was necessary to

avoid an “unduly burdensome and costly” process of “review or redaction,” given the

56 “presumption in favor of the common-law right of access to judicial records” (internal quotation

marks omitted)); Meyer v. UNUM Life Ins. Co. of Am., Civ. No. 12-1134-KHV,

, at *2 (D. Kan. Mar. 19, 2014) (concluding that “[t]he task of redacting,” though

admittedly “unwieldy and burdensome,” nonetheless “does not rise to a significant interest that

outweighs the public’s right of access”)). This, however, is largely due to the fact that litigants

ordinarily invoke the common law right of access with respect to specific documents, not to

wholesale categories of sealed matters filed over an almost decade-long period, see, e.g.,

Camick,

n.5 (reviewing motion to seal the supplemental record in a single

criminal case); Meyer,

, at *2 (reviewing motions to file particular exhibits in

a single case under seal). Indeed, the petitioners identify no judicial decision recognizing such a

right of access to broad categories of sealed materials filed over a period of years, let alone when

such sealed materials are quintessentially sensitive because they relate to the exercise of statutory

authorities to collect evidence in criminal investigations. Courts thus have had little occasion, in

common law right of access matters, to grapple with the issue of administrative burden that

would attend unsealing and disclosure requests of the pending petitions’ scope.

Contrary to the petitioners’ argument, the only judicial decision of which the Court is

aware to have confronted an analogously broad request for unsealing and/or disclosure of sealed

criminal materials denied the request on the ground that “the scope of the relief sought . . . is

overbroad” and “not practicable, as each case needs to be evaluated on an individual basis to

ensure that unsealing is permissible.” Order Den. Mot. Unseal Docs. & Publicly Docket Ct. Rs.

at 1–3, In re Jennifer Granick & Riana Pfeffkorn, No. 16-mc-80206-KAW (N.D. Cal. June 23,

2017) (“Gradick”) (denying petition for the unsealing and disclosure of “all sealed criminal

miscellaneous cases filed between January 1, 2006 and December 31, 2011”). Gradick, though

57 decided under the First Amendment rather than common law right of access, see

illustrates

that a court properly may consider the breadth of access to judicial records that a petition seeks,

and the burden that would attend compliance with an order requiring such disclosure, in

determining the scope of disclosure to grant.

Likewise, this Court has “declined to establish a public docket of materials filed in

connection with any grand jury proceedings” on the ground, among others, “that to impose such

a rule would be unduly burdensome”—a decision that the D.C. Circuit affirmed as within this

Court’s discretion. In re Sealed Case,

(D.C. Cir. 2000) (internal

quotation marks omitted). Though the petitioners there asserted an entitlement to disclosure

under Local Rule of Criminal Procedure 6.1 rather than the common law, In re Sealed Case

illustrates that a district court, in exercising discretion to make public or maintain under seal

voluminous judicial records from entire categories of sealed matters, properly may consider

whether granting the relief sought would “impos[e] undue administrative burdens on the trial

court.”

.32 The D.C. Circuit held, moreover, that the “District Court’s explanation” for

its denial of a request “for a redacted public docket in a specific proceeding . . . . must bear some

logical connection to the individual request,” meaning that such denial “must rest on something

more than the administrative burdens that justified the denial of across-the-board docketing.”

(emphasis added). In doing so, the Circuit implicitly recognized that a court properly may

cite “administrative burdens” to “justif[y] the denial of across-the-board” disclosure where a

petitioner does not make an “individual request” for disclosure “in a specific proceeding,” but

32 Local Rule of Criminal Procedure 6.1 provides, in relevant part, that “[p]apers, orders and transcripts of hearings subject to [grand jury secrecy], or portions thereof, may be made public by the Court on its own motion or on motion of any person upon a finding that continued secrecy is not necessary to prevent disclosure of matters occurring before the grand jury.” LCrR 6.1. 58 seeks wholesale disclosure of sealed materials across entire categories of matters initiated over a

period of years.

(emphasis added).

Here, as in Gradick and In re Sealed Case, granting the petitioners’ request for “across-

the-board” access to extracted information from USAO-initiated PR/TT matters and § 2703(d)

docket information in closed matters filed over a nine-year period, for the reasons explained

above, “would be unduly burdensome” on the USAO and the Clerk’s Office, thereby detracting

from other mission-critical responsibilities. Id. at 523, 527; cf. Dietz v. Bouldin,

, 1892–93 (2016) (recognizing a district court’s “inherent authority to manage their dockets

and courtrooms with a view toward the efficient and expedient resolution of cases . . . sav[ing]

the parties, the court, and society . . . costly time and litigation expense.” (internal quotation

marks omitted)).

Although the USAO had agreed to extract fifteen categories of information from ten

percent of USAO-filed PR/TT matters from each year from 2008 to 2011 and 2013 to 2016, the

petitioners have rejected that offer. Pet’rs’ Mem. at 35–38. In the petitioners’ view, such a

limited sampling of PR/TT matters would be “non-statistically significant” and inadequate “for

the public to gain meaningful insight into the sealed PR/TT matters filed by the USAO” or to

“allow journalists or the public to identify trends or identify non-routine requests.” Id. at 37.

They emphasize the virtual uselessness of extracted information from a small percentage of

USAO-filed PR/TT matters in three declarations. See Decl. of Jason Leopold (“Leopold Decl.”)

¶¶ 11, 15, ECF No. 38-2 (“[T]here is no way to accurately report on or understand the full scope

of the PR/TT matters in this Court with only 10% of the relevant data. . . . [T]he limited data

available to [journalists] severely hampers [their] ability to provide the comprehensive coverage

the public deserves.”); Decl. of Riana Pfefferkorn, Cryptography Fellow, Center for Internet &

59 Soc’y (“CIS”), Stan. Law School (“CIS Decl.”) ¶ 11–12, ECF No. 38-3 (“Unsealing a 10%

sample of the D.C. PRTT Matters would be extremely unlikely to reveal all of the haystack’s

needles, and might capture none at all. In short: the only way to be sure that the public learns

about these important matters—to find all of the needles—is to disclose the whole haystack for

public review. . . . The public cannot get a full, informed understanding of government

surveillance in this District if it is permitted to see only one small sample that will not reliably

capture all the public-interest cases.”); Decl. of Will Potter, Prof. of Journalism, Univ. of Mich.

(“Potter Decl.”) ¶ 12, ECF No. 38-4 (“Unsealing only 10% of these records will continue to

prevent journalists, researchers, and academics from understanding the trends in the use of

PR/TT devices.”).

Indeed, the petitioners have represented that providing extracted information from a ten

percent sampling of PR/TT matters could be worse than providing no information at all, as such

a limited sampling “could lead to misleading, if not demonstrably inaccurate results.” Leopold

Decl. ¶ 11; see also Potter Decl. ¶ 12–13 (“It is methodologically unsound to attempt to show

trends based on a random selection of only 10% of records from a given year. . . . With only 10%

of the data available, a reporter would need to tell the editor, ‘No, the data is not even close to

comprehensive, and any conclusions that can be drawn would not be reliable.’ As one can

imagine, a journalist would be severely limited in what they could write about the data.”). The

petitioners also assert that providing extracted information from less than one hundred percent of

PR/TT matters would have little to no public value. See, e.g., Leopold Decl. ¶ 13 (“A larger

sample size would not solve this problem. Because the universe of PR/TT matters at issue is so

small, absent the release of data from all of the sealed cases relating to closed investigations

there is little [one] could meaningfully say about the ‘big picture’ with a level of confidence that

60 would meet journalistic standards.”); Potter Decl. ¶ 14 (“[U]nsealing or providing information

for less than 100% of the records for these years will leave a journalist unable to perform a clear

and thorough job reporting on the use of PR/TT devices. This would significantly undermine the

ability of the public to understand law enforcement’s use of this surveillance technology and to

hold the government accountable.”).

Through these submissions, the petitioners make amply clear that, in their view,

retrospective access to extracted information in PR/TT matters is an all-or-nothing situation:

such access to less than one hundred percent of USAO-initiated PR/TT matters would have little

to no value, and in fact might be worse than useless by yielding incomplete and misleading

information. Yet, the administrative burden on the USAO and Clerk’s Office that would be

triggered by compelling the USAO to fulfill the petitioners’ request for unsealing and disclosure

of fifteen categories of extracted information in all PR/TT matters filed over nine years, would

be unduly significant.

Accordingly, upon consideration, under Hubbard, of the USAO’s and Clerk’s Office’s

particularized interest in avoiding undue administrative burden, the common law right of access

does not entitle the petitioners to any additional retrospective relief.

D. Prospective Relief

Having concluded that, given the USAO’s and Clerk’s Office’s recently adopted

administrative and operational changes in processing sealed government surveillance

applications in criminal investigative matters, the common law affords the petitioners a

prospective right of access sealed PR/TT, 2703(d), and SCA warrant matters, the Court next

addresses the precise scope of the prospective access to which the petitioners are entitled. The

agreement entered into by the Clerk’s Office and USAO provides the public with a significant

61 degree of information about this Court’s judicial review process for such USAO-initiated matters

that, in many respects, addresses substantial parts of the prospective relief the petitioners seek.

See CLERK’S OFFICE, U.S. DIST. COURT, D.C. & CRIM. DIV., U.S. ATT’Y’S OFFICE, D.C., MEM. OF

UNDERSTANDING: ELECTRONIC FILING OF CERTAIN SEALED APPLICATIONS & ORDERS (“MOU”)

(Aug. 15, 2017),

http://www.dcd.uscourts.gov/sites/dcd/files/MOU_Electronic_Filing_Pen_Registers.pdf.

For example, among “changes to current practices relating to the filing, docketing, and

unsealing” of sealed PR/TT, § 2703(d) and SCA warrant materials “in this District” demanded

by the petitioners is that “government attorneys should be both permitted and required to file . . .

electronically via CM/ECF” such sealed materials. Pet’rs’ Mem. at 32, 38, 41. The petitioners

further ask that the “USAO and other government entities that file [these sealed materials] in this

District should be encouraged to adopt uniform, standardized case captions and document titles .

. . that do not include, for example, target names, telephone numbers, and e-mail addresses.” Id.

at 33, 39, 42. These steps have already been accomplished or are underway.33

Historically, the USAO was required by this Court’s local rules to file all sealed

applications for PR/TT orders, § 2703(d) orders, and/or SCA warrants in paper form, but

effective November 9, 2017, the local rules were amended to permit the electronic filing of such

documents, with the “prior written authorization” of the Clerk of Court. See LCrR 49(e)(4)

(“Unless prior written authorization for electronic filing is given by the Clerk of Court, every

document filed prior to the initial appearance of a criminal defendant, including but not limited

to . . . a pen register application . . . [and] an application for stored electronic information or

33 The USAO may still submit applications in paper form “on weekends, outside of normal business hours, or in exigent circumstances.” MOU at 1. 62 evidence . . . [or] for disclosure of electronically stored evidence shall be filed in paper form.”).

The MOU provides the written authorization from the Clerk of the Court, required under revised

Local Criminal Rule 49(e)(4), for the USAO to file such applications electronically.34

In addition, the MOU requires case captions for sealed applications and orders to follow

standardized formats. MOU at 2. The standardized captions will contain no personally

identifying information, such as the targeted email account, telephone number, or subscriber

name, but, depending on the type of application, generally will include pertinent information

about the number of targeted accounts, the service provider and the primary offense statute

applicable to the criminal activity under investigation. Id. The captions for PR/TT applications,

for example, must contain: (1) the number of target telephone lines, subscriber accounts, and/or

devices that are the application’s subject or subjects; (2) the type of target or targets (e.g., a

landline, cellular, or mobile telephone; email account; cell tower; or other facility or device)

subject to the application; (3) the service provider to which the order would be directed; and (4)

the primary offense statute(s) under investigation. Id. This standard case caption containing the

variable information detailed above must be used by the USAO when initiating or making

successive applications in a sealed PR/TT matter. Id.35

Such standardized captions will enable the Clerk’s Office periodically to generate reports

on the CM/ECF system reflecting the total number, matter docket numbers, and case captions

associated with sealed matters, which reports may be unsealed and made publicly accessible,

34 In operation, the MOU authorizes the USAO to submit PR/TT, § 2703(d), and SCA warrant applications electronically, by opening a sealed matter on CM/ECF, in accordance with written instructions provided by the Clerk’s Office. MOU at 1–2. Upon the duty Magistrate Judge’s execution of an order granting or denying the application, the Clerk’s Office will electronically docket the order, then advise USAO, through a notice of electronic filing, that the order has been signed and docketed, and can be accessed on CM/ECF. Id. 35 One or more such caption variables may be omitted by the USAO if disclosure would risk compromising an ongoing investigation. MOU at 2. 63 without undertaking the burdensome task of redacting personally identifiable or target

information that may otherwise—and historically has been—placed in the caption.36 Thus, while

the petitioners seek prospective relief about only PR/TT, § 2703(d), and SCA warrant materials,

the MOU will facilitate the unsealing and disclosure of limited information revealing the

numbers, case captions and filing dates of additional categories of sealed surveillance materials,

as such materials are added to coverage under the MOU.37

The Clerk’s Office has also adopted new CM/ECF case types to more readily identify the

type of criminal investigative matter being initiated. Thus, rather than assigning general MC

numbers to many different types of sealed criminal investigative matters, the Clerk’s Office will

assign more specialized docket numbers reflective of the matter at hand. For example, “PR” will

be used for PR/TT applications and “SC” for SCA applications, with special designations within

the SC case type for SCA warrant and § 2703(d) materials.

The petitioners would have both the Clerk’s Office and the USAO take two additional

36 The Clerk’s Office plans to generate, via CM/ECF, biannual docket reports reflecting docket numbers and case captions associated with certain categories of sealed criminal investigative matters filed during the six-month period ending six months prior to a given report’s issuance. MOU at 3. A docket report issued on September 30, 2019, for example, would account for a sealed matter initiated in November 2018. Id. Upon unsealing, these biannual docket reports will be made publicly available. 37 The MOU currently authorizes the USAO to submit only PR/TT and § 2703(d) applications electronically, see MOU, Attach. A, Sealed Applications and Orders Subject to Electronic Filing MOU (Sept. 14, 2017), but this MOU and the attachment will be updated to authorize the electronic submission of other sealed government surveillance applications as administrative operations within both the Clerk’s Office and the USAO allow. As stressed above, the common law entitles the petitioners to prospective relief only because recently-adopted administrative and operational changes to the USAO and Clerk’s Office’s processing of sealed government surveillance applications in criminal investigative matters, as reflected in the MOU, reduces, to an administratively manageable level, the burdens that providing such disclosure would impose. These administrative and operational reforms include allowing the USAO to file PR/TT, § 2703(d), and SCA warrant applications electronically. The Hubbard factor analysis favoring prospective relief presupposes that the USAO can file such applications electronically with standard templates, which remove from application and case captions any personally identifiable or other information properly remaining under seal. Otherwise, the particularized Hubbard factor of administrative burden on the USAO and the Clerk’s Office would outweigh the generalized Hubbard factors that weigh toward disclosure, and the common law would provide no right of access. Thus, a prospective right of access to information regarding SCA warrant matters shall not come into being until the MOU is updated to authorize the USAO to file such applications electronically. 64 steps in providing prospective relief.38 First, the petitioners request real-time unsealing and

public posting on PACER, upon initial filing of sealed PR/TT, § 2703(d), and SCA warrant

materials, of each matter’s “case number and certain associated docket information,” including

“case name, date of application, and magistrate judge to whom the matter is assigned.” Pet’rs’

Mem. at 33, 39, 41. This information, petitioners explain, would “allow[] the public to know the

number of applications for PR/TT devices filed by the government and pending at a given time

in this District, and gives the public an opportunity to request that judicial records in particular

matters be unsealed.” Id. at 33–34.

This request for real-time reporting by the Clerk’s Office on the filing of PR/TT, §

2703(d), and SCA warrant materials represents a significant shift in the petitioners’ position.

Over the course of this five-year litigation, the petitioners have insisted that they do not seek

access to pending, open and active criminal investigations, which this real-time reporting would

necessarily provide. To the contrary, the original petitions in this case sought information only

about closed investigations. See, e.g., Pet. at 1 (disclaiming access to materials “which relate to

an ongoing investigation”); May 2016 Tr. at 5:10–11 (“[W]e’re not asking for anything

38 The petitioners’ extraordinary complaint that the MOU represents an “an end-run around [p]etitioners and this litigation,” Pets.’ Reply to Gov’ts’ Opp’n (“Pets.’ Reply”) at 5, ECF No. 52, is both misplaced and short-sighted for several reasons. First, as the USAO correctly observes, “the decision . . . how[] to establish a protocol to identify more accurately, track, and ultimately terminate sealing orders is a matter that falls within the administrative responsibility of this Court,” Gov’t’s Resp. at 3 n.3—a responsibility that stands entirely independent of any particular litigant or case. Second, the MOU does not apply to the petitioners’ requests alone, and the petitioners are far from the only persons who may benefit from the MOU. Going forward, the additional transparency as to the judicial review process for sealed criminal investigative matters that the MOU provides will have benefit to the public far broader than merely to the litigants in this case. The petitioners simply have no unique status among the public to be made privy to “private negotiations with the Clerk’s Office,” Pet’rs’ Reply at 5, regarding administrative and operational matters, as they demand. Finally, and most importantly, as made clear in the text, the petitioners’ success in prevailing on their common law right of access claim as to prospective relief is due entirely to the advances outlined in the MOU and adopted by both the USAO and the Clerk’s Office in processing the sealed criminal investigative matters at issue. In this respect, “[s]ome people might call” the petitioners’ accusation—that the MOU’s entry was improper and constituted some sort of “end-run” around them, Pets.’ Reply at 4—“chutzpah.” Ariz. Free Enter. Club’s Freedom Club PAC v. Bennett,

, 766 (2011) (Kagan, J., dissenting). 65 involving an ongoing investigation.”); Sept. 2016 Tr. at 22:14 (reaffirming that the petitioners

seek disclosure of information from only investigations that are “completely closed”); Dec. 2016

Tr. at 26:16–17 (“[W]e understand the open investigations issue, and we have stayed away from

it.”); id. at 23:3–5 (reiterating that the petitioners do not seek to “expos[e] an ongoing

investigation” and have “limited [thei]r requests to closed investigations”); Feb. 2017 Tr. at

16:13, 38:15–16 (disclaiming “access to the documents” in “an ongoing investigation” and

emphasizing that the petitioners seek access to materials “only . . . for closed investigations”).

On this basis alone, the petitioners’ demand for prospective relief in the form of real-time

reporting of sealed matters for pending, open, and active criminal investigations is denied.

Instead, the Clerk’s Office, as set out in the MOU, plans to provide biannual docket

reports about various types of sealed criminal investigative matters filed twelve through six

months prior to each report’s publication. While some of these matters will remain open, the six-

month delay in reporting somewhat reduces the risk to an ongoing criminal investigation. These

reports will provide information about the total numbers of such matters and, as reflected in the

standardized caption for each matter, the number and type of target accounts (e.g., landline

telephone, cellular telephone, and/or email), the providers’ names, and the primary offense

statutes under investigation. This information on the sealed applications subject to judicial

review will provide additional transparency as to the processing of these sensitive matters,

without jeopardizing either privacy or law enforcement interests. Indeed, this information is far

more robust than that seemingly sought by the petitioners.

Second, the petitioners would require the USAO or other government entity initiating a

sealed matter “to promptly move to unseal or partially unseal” upon “the close of the related

criminal investigation,” and, if a matter remains sealed “six months (180 days) after the date it

66 was initially filed,” that the Court be prepared to issue “an order to show cause why it should not

be unsealed in its entirety.” Pet’rs’ Mem. at 34–35, 39, 42. As the USAO correctly indicates,

adoption of “a system that calls for the Court to issue show cause orders in each of the hundreds

of PR/TT and SCA matters that are filed each year would be labor-intensive for the Clerk’s

Office and would require the USAO[] to expend resources to review each matter and respond to

each show cause order.” Gov’t’s Opp’n at 41 n.18. This is simply unworkable. Instead,

periodic reports by the Clerk’s Office concerning sealed criminal investigative matters and

dockets will serve the public interest by providing additional transparency regarding the judicial

review of sealed criminal investigative matters in a manner that is less burdensome to the Court,

the Clerk’s Office, and the USAO.

Moreover, the very reasons that the petitioners cite as the public value in obtaining public

access to redacted PR/TT, § 2703(d), and SCA warrant materials—making the public aware of

the USAO’s use of (1) novel legal theories to obtain orders allowing for particular types of

surveillance, and/or (2) techniques “to compel a service provider to provide novel or unusual

technical assistance,” Pets.’ Mem. at 13 (quoting CIS Decl. ¶ 10 (alterations omitted))—are the

reasons disclosure may be detrimental to ongoing law enforcement investigations. Such

disclosure could tip off targets and subjects of ongoing criminal investigations to the existence of

investigative methods and techniques, the very efficacy of which may rely, in large part, on the

public’s lack of awareness that the USAO employs them. This, in turn, would enable targets and

subjects to structure their communications so as to evade detection or to spoliate, through

tampering or outright destruction, potential evidence already in existence, to the prejudice of

ongoing criminal investigations and the concomitant increased risk to public safety. Imposing

such burdens on law enforcement investigations cannot be justified, notwithstanding the public

67 value that disclosure of redacted PR/TT, § 2703(d), and SCA warrant materials may have.

A court’s “decision as to access is one best left to the sound discretion of the trial court, a

discretion to be exercised in light of the relevant facts and circumstances of the particular case.”

Nixon,

. The additional steps demanded by the petitioners as prospective relief

would impose significant administrative and other burdens on the Clerk’s Office and USAO, but

would do little to increase transparency compared to the information that will be made publicly

available under the MOU. For these reasons, the information and access afforded by the steps

outlined in the MOU on a going-forward basis provide all the prospective relief to which the

common law entitles the petitioners.

III. CONCLUSION

This litigation illustrates that “changing technology affects the public’s appetite for

information concerning court proceedings,” and “[t]his in turn changes and affects the

requirements for judicial transparency.” Hon. T.S. Ellis III, Sealing, Judicial Transparency and

Judicial Independence, 53 VILL. L. REV. 939, 942–43 (2008). Indeed, “[t]ransparency is a

function of both technology and public expectations, and both of these factors vary over time.”

Id. at 941. While judicial independence is embedded in our constitutional framework, this

critical feature of our federal government is bolstered by transparency in how the courts review

and resolve the matters presented to them. Otherwise, “[s]ecret proceedings, including

unwarranted or excessive sealing of court records, engender suspicion, mistrust and a lack of

confidence in the judicial process and, if not rare and well understood as necessary, such

proceedings will likely lead to attempts to limit judicial authority and independence.” Id. at 940.

Thus, taking stock of where transparency may be improved as to records originally sealed to

good purpose, is not just a fruitful exercise that may be prodded by litigation such as the one at

68 bar, but a necessary administrative endeavor for the courts.

In this case, the sealed judicial records at issue are sensitive government applications

seeking authorization to collect, for use in ongoing criminal investigations, certain types of

information about electronic and telephonic communications. The parties are in agreement that

information in these sealed judicial records implicate myriad considerations, including the

sensitive personal privacy and reputational interests of the customers or subscribers, about whom

the information was sought; important public safety and law enforcement interests in avoiding

any disruption of, or loss of evidence in, ongoing criminal investigations; and, finally, the

Court’s interest in ensuring the administrative feasibility of providing meaningful, rather than

misleading, information and imposing no more than manageable burdens on the Clerk’s Office

and the USAO. These weighty interests of protecting privacy and public safety, and providing

additional transparency for these sealed judicial records in an administratively workable manner,

exist in significant tension with providing the public access sought by the petitioners.

Nonetheless, this Court has striven to articulate a common law right of access to sealed judicial

records regarding the government’s exercise of statutory surveillance authorities that strikes a

workable balance.

To that end, while the First Amendment extends no right of access to these judicial

records, the Court identifies a prospective right of access, due to the significant administrative

and operational reforms undertaken in tandem by the Clerk’s Office and the USAO, to certain

categories of information, which will be disclosed on a periodic basis, regarding the total number

of PR/TT, § 2703(d), and SCA warrant applications filed by the USAO, the number and type of

accounts that such applications target, the names of the providers to which these applications are

directed, and the primary criminal offense under investigation for these applications. The

69 prospective right of access articulated here is designed to minimize any risk of revealing

information about ongoing law enforcement investigations or the individuals targeted, but will

enable the public to know, albeit on a limited basis, more about what this Court is doing in

reviewing these types of surveillance applications. No retrospective right of access is

recognized, in consideration of the significant administrative burdens that retrospective

disclosure would impose on the Clerk’s Office and USAO.

For the foregoing reasons, the petitioners’ petitions to unseal are granted in part and

denied in part. An appropriate Order accompanies this Memorandum Opinion.

Date: February 26, 2018

__________________________ BERYL A. HOWELL Chief Judge

70