In re Jason Leopold to Unseal Certain Elec. Surveillance Applications
In re Jason Leopold to Unseal Certain Elec. Surveillance Applications
Opinion of the Court
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 *68practices 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.
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.
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.
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.
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 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.
Nothing more transpired in this matter for over two years, until the matter was reassigned to the undersigned in March 2016.
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.
While acknowledging that the petition was "quite broad,"
The Court directed the parties to propose a future course and, given the breadth of relief 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."
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 ("1 st Jt. Rpt.") ¶ 2, ECF No. 19. The USAO, in turn, agreed to "produce to petitioner a representative sampling of redacted *72applications for the year 2012," though the petitioners "declined to agree to a representative sampling."
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.
The Court agreed to the parties' request to unseal MC docket numbers for PR/TT
*73matters that the USAO initiated in 2012.
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.
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 ("3 rd Jt. Rpt.") ¶ 9, ECF No. 27; see also Fourth Joint Status Report ("4 th 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 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 *74CM/ECF case type). See Order & Notice to the Parties, ECF No. 32;
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
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 (7 th 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
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.
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 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.
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 3 rd 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, Attach. A, Unsealed & Redacted Filings in Matter No. 12-MC-12, ECF No. 26-1;
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 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 criminal investigation identifying information, "on a mutually agreeable schedule."
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.
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.
*78The 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. 4 th 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."
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 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 ("5 th 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.
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, *7942:18 (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,
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. 6 th 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,"
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."
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 ,
" 'The public right of access [thus] is undisputed in both its importance and its historical pedigree." United States v. El-Sayegh ,
"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 ,
A. Legal Framework
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 "),
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 ,
The Supreme Court has applied the First Amendment right of access not only to criminal trials, see Richmond Newspapers, Inc. ,
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. ,
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."
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 ,
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. ,
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."
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."
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."
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."
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"), Pub. L. No. 99-508,
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."
*85Unlike the PRA, the SCA contains no provision requiring the sealing of SCA warrants or § 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
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."
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 ,
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."
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,
*87The 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).
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."
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 ,
More fundamentally, analytical substitution is appropriate only where "[a] new procedure [ ] substituted for an older one." El-Sayegh ,
"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 ,
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 ,
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 the government to search and seize "persons or things," in a search warrant's manner,
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 ,
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 ,
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 ,
For these reasons, SCA warrants in fact "are not search warrants at all and to call them such confuses legal terminology." Google ,
*91Douglas Oil Co. of Cal. v. Petrol Stops Nw. ,
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.
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 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 ,
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 *92Hubbard 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.
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. ,
b. Overview: Hubbard Factor Analysis
The petitioners seek access to information concerning the government's reliance on 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 *93PR/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 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 ,
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
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.
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 ,
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 ,
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.
iv. Strength of Property and Privacy Interests Asserted
The strength of any property and privacy interests asserted is the fourth Hubbard factor.
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.
vi. Purposes for Which Documents Were Introduced
The purpose for which documents were introduced is the sixth, final, and "single most important" Hubbard factor.
[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, 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.
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 *97themselves. 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,
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 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"
*98that a party may assert in support of maintaining documents under seal.
i. Estimated Burden of Extracting Information From 2,248 PR/TT Matter s
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. 6 th 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.
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 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, 6 th 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 list of CM/ECF matters generated by the search criteria.
*99In 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
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 7 th 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'
*100requested 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, 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,
*101Contrary 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 decided under the First Amendment rather than common law right of access, see
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 ,
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.
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 & 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 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.").
*103Through 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 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.
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 evidence ... [or] for disclosure of electronically stored evidence shall be filed in paper *104form."). 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.
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.
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, without undertaking the burdensome task of redacting personally identifiable or target information that may otherwise-and historically has been-placed in the caption.
*105The 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 steps in providing prospective relief.
This request for real-time reporting by the Clerk's Office on the filing of PR/TT, *106§ 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 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 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 *107orders 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 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 ,
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 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 *108of, 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 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.
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. ,
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.
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.
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 "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.
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.
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."
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.
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 18 U.S.C. Section 2703(D) ),
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.
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.
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*." 7 th Jt. Rpt. ¶ 14.
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
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.
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.
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.
In a subsequent joint status report, the parties clarified that "the present" referred to the year 2016. See Fifth Joint Status Report (5 th Jt. Rpt.") ¶ 3, ECF No. 30.
A Reporters Committee fellow asserted that she had completed the extraction process for the four 2012 matters previously unsealed in 47 minutes. See 6 th Jt. Rpt., Ex. B, Decl. of Selina MacLaren, Legal Fellow, Reporters Comm. ¶¶ 2-4, ECF No. 36.
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 the SCA matter lists discussed above, the Court set a revised briefing schedule. Minute Order, dated July 28, 2017.
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.
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."
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,
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 ,
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 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." Id. at 41-42.
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."
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.
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 ,
The Eastern District of Virginia discloses "assigned case numbers, the date of assignment, the presiding judge, and whether the case is sealed," see Appelbaum ,
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.
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.
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.
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.
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.
The USAO may still submit applications in paper form "on weekends, outside of normal business hours, or in exigent circumstances." MOU at 1.
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.
One or more such caption variables may be omitted by the USAO if disclosure would risk compromising an ongoing investigation. MOU at 2.
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.
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.
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 ,
Reference
- Full Case Name
- In the MATTER OF the Application of Jason LEOPOLD TO UNSEAL CERTAIN ELECTRONIC SURVEILLANCE APPLICATIONS AND ORDERS.
- Cited By
- 21 cases
- Status
- Published