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In re Application of Leopold

United States District Court, District of Columbia

February 26, 2018



          BERYL A. HOWELL Chief Judge

         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.

         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, 18 U.S.C. § 2701 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 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 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 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 18 U.S.C. § 2703(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 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]

         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 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 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]

         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 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; id., 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; id., 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. Id.

         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 18 U.S.C. § 2703(d), for the years 2008 through 2016. Sixth Joint Status Report (“6thJt. 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 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 18 U.S.C. § 2705(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 18 U.S.C. § 2703(a) and (b) (there being no designated CM/ECF case or event type for SCA warrant materials). Id. ¶¶ 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.” Id. ¶ 15. 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 “allow the parties to understand the volume of Section 2703(d) and SCA Search Warrant matters at issue.” Id. ¶ 16.

         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 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. Id. 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.” Id. 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. Id. 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. Id. ¶ 3; 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, Attach. A, Unsealed & Redacted Filings in Matter No. 12-MC-12, ECF No. 26-1; id., Attach. B, Unsealed & Redacted Filings in Matter No. 12-MC-129, ECF No. 26-2; id., Attach. C, Unsealed & Redacted Filings in Matter No. 12-MC-227, ECF No. 26-3; id., 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 Id. 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. Id. ¶ 7.

         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.” Id. ¶ 8.[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.” Id. ¶ 5.

         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. Id. 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.” Id. at 12:3, 11.[14] Further, the process of partially unsealing a PR/TT matter to identify its initiating AUSA “was just too time consuming, ” id. at 12:4, particularly since the USAO was required to obtain physical copies of docket materials, as the USAO lacked electronic access to such sealed materials, id. 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, id. 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. Id. 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. Id. 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. Id. at 24:1-7. The parties agreed in principle to consider and confer about such an extraction process. Id. 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. Id. 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. Id. at33:22-25, 34:1-17, 35:15-18, 21-22, 25, 36:1.

         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.” Id. ¶ 3.[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. Id. ¶ 4. 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. Id. ¶ 8. 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. Id.

         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. Id. ¶¶ 5, 6.

         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. Id. ¶¶ 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, id. at 22:13 - 25, 23:9-13; or (3) extract information from all sealed PR/TT 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, id. 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, ” id. ¶ 10, but nonetheless expressed willingness to perform the same extraction process for a ten percent sample of the remaining eight years of PR/TT matters, id. ¶ 10.[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. Id. ¶¶ 15, 19.

         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.” Id. ¶ 19.[18]

         Briefing on these legal issues is now complete, and the petitioners' requests are ripe for review.


         “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, 865 F.3d 661, 663 (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, 333 U.S. 257, 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., 865 F.3d at 665 (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, 131 F.3d 158, 161 (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, 749 F.3d 246, 266 (4th Cir. 2014) (quoting Littlejohn v. Bic Corp., 851 F.2d 673, 682 (3d Cir. 1988)). Unlike“[t]he political branches of government, ” which “claim legitimacy by election, [a] judge[']s” legitimacy derives solely “by reason.” Hicklin Eng'g, L.C. v. Bartell, 439 F.3d 346, 348 (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.” Id. “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., 865 F.3d at 663.

         “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, 749 F.3d at 265; see In re U.S. for an Order of Nondisclosure Pursuant to 18 U.S.C. § 2705(b) for Grand Jury Subpoena # GJ2014031422765, 41 F.Supp.3d 1, 7 (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, 749 F.3d at 266 (quoting Stone v. Univ. of Md. Med. Sys. Corp., 855 F.2d 178, 182 (4th Cir. 1988)); cf. EEOC v. Nat'l Children's Ctr., Inc., 98 F.3d 1406, 1409 (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

         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”), 478 U.S. 1, 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. Id. at 9. “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, 649 F.3d 793, 795 (D.C. Cir. 2011) (quoting Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555, 573 (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, 478 U.S. at 9 (quoting Press-Enter. Co. v. Superior Court of Cal. (“Press-Enter. I”), 464 U.S. 501, 510 (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, 649 F.3d at 796 (quoting Wash. Post v. Robinson, 935 F.2d 282, 290 (D.C. Cir. 1991)).

         The Supreme Court has applied the First Amendment right of access not only to criminal trials, see Richmond Newspapers, Inc., 448 U.S. at 573, 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, 331 F.3d 918, 935 (D.C. Cir. 2003); see Press-Enter. I, 464 U.S. at 505 (criminal voir dire); Press-Enter. II, 478 U.S. at 13 (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, 673 F.3d 245, 252 (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., 435 U.S. 589, 597 (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, 89 F.3d 897, 902 (D.C. Cir. 1996). “First, the court must decide whether the document sought is a ‘public record.'” Id. (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.” Id. (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.” 650 F.2d 293, 317 (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., 865 F.3d at 666 (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 proceedings.” Id. at 665 (quoting Nat'l Children's Ctr., Inc., 98 F.3d at 1409).

         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, 650 F.2d at 323 (“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., 653 F.2d 609, 613 (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., 18 U.S.C. §§ 2510 et seq. (governing real-time interception of wire, oral, or electronic communications); 18 U.S.C. § 2518(11), (12) (governing roving wiretaps); 18 U.S.C. § 2703(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”); 18 U.S.C. § 3117 (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.” 18 U.S.C. § 3122(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, 416 F.Supp.2d 13, 15-16 (D.D.C. 2006) (Hogan, C.J.) (citing definitions in 18 U.S.C. § 3127(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, 831 F.3d 523, 527 (D.C. Cir. 2016) (“A pen register is a 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.” Id. § 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 realtime 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 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, 831 F.3d at 528 (concluding that a pen register order was “shielded” from disclosure, under the ...

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