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In re Application of Leopold

United States District Court, District of Columbia

August 16, 2018

IN THE MATTER OF THE APPLICATION OF JASON LEOPOLD TO UNSEAL CERTAIN ELECTRONIC SURVEILLANCE APPLICATIONS AND ORDERS.

          MEMORANDUM OPINION

          BERYL A. HOWELL CHIEF JUDGE

         Jason Leopold and the Reporters Committee for Freedom of the Press filed petitions to unseal voluminous judicial records, dating back years, authorizing the government's use of certain statutory authorities to gather information for use in now-closed criminal investigations, which petitions were predicated on asserted rights of access under the First Amendment and the common law. See Leopold's Pet. Unseal Records (“Leopold's Pet.”), ECF No. 1; Reporters Comm.'s Appl. to Unseal & for Other Appropriate Relief (“Reporters Comm.'s Appl.”), ECF No. 18. On February 26, 2018, the Court recognized a prospective right of access under the common law to limited information concerning three categories of judicial records, routinely maintained under seal, relating to applications filed by the U.S. Attorney's Office for the District of Columbia (“USAO”) for: (1) warrants issued pursuant to the Stored Communications Act (“SCA”), see 18 U.S.C. § 2703(a); (2) court orders issued pursuant to the SCA's § 2703(d); and (3) orders authorizing the installation and use of pen register and trap and trace (“PR/TT”) devices pursuant to the Pen Register Act (“PRA”), see Id. § 3123. See Order Granting in Part & Denying in Part Leopold's Pet. & Reporters Comm.'s Appl. (“Order”), ECF No. 53; Matter of Leopold to Unseal Certain Elec. Surveillance Applications & Orders (“Leopold”), 300 F.Supp.3d 61 (D.D.C. 2018). The Court declined to recognize a broader or retrospective right of access under the common law or to recognize any right of access under the First Amendment to these routinely sealed records. Leopold, 300 F.Supp.3d at 108.

         The petitioners now seek reconsideration of the Court's Order and Memorandum Opinion. See Pet'rs' Mot. Reconsideration, ECF No. 55. Specifically, the petitioners ask the Court to (1) reconsider its conclusion that the First Amendment affords no right of access to the three categories of judicial records at issue, (2) reconsider its conclusion that the common law provides no broader right of access than that which the Court has recognized, and (3) more clearly specify the factual findings upon which the Court based its resolution of the petitioners' common law claim. Id. at 1. For the reasons explained below, the petitioners' motion for reconsideration is denied.

         I. BACKGROUND

         The Court's previous Memorandum Opinion laid out this matter's background in great detail, see Leopold, 300 F.Supp.3d at 68-79, so only a brief overview of the relevant facts is necessary. In July 2013, Leopold, a journalist currently employed by BuzzFeed News, filed a petition to unseal nearly twenty years of sealed government applications, pursuant to various statutory authorities, plus related affidavits and orders, regarding the government's collection of information during law enforcement investigations, “except for those which relate to an ongoing investigation.” See Leopold's Pet. at 1. Leopold asserted that both the First Amendment and the common law established rights of access to these materials. Id. at 4, 12-18. Three years later, after the case was reassigned to the undersigned Judge, the Reporters Committee was permitted to intervene, see Reporters Comm.'s Unopposed Mot. Intervene, ECF No. 16, and filed its own petition to unseal, see Reporters Comm.'s Appl. Over the next year, the petitioners and the USAO, with guidance from this Court, engaged in discussions on how properly to vindicate, in light of substantial law enforcement investigative and individual privacy concerns, the public's interest in transparency of judicial records concerning the government's use of statutorily authorized investigative tools. See Leopold, 300 F.Supp.3d at 67-68.

         In the course of these discussions, the petitioners agreed to limit the scope of their unsealing request by shortening the time period covered and seeking only records relating to (1) SCA warrants, pursuant to 18 U.S.C. § 2703(a); (2) SCA orders, pursuant to 18 U.S.C. § 2703(d); and PR/TT orders. Id. at 69. The USAO, meanwhile, agreed to unseal

(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.

Id. at 100. At all times, the petitioners' limited the scope of their requested relief to materials from closed investigations. This limit necessarily precludes real-time disclosure of any information or records, including docketed case numbers, for these criminal investigative matters, since the USAO only seeks, and the Court only grants, such orders in “ongoing criminal investigation[s].” 18 U.S.C. § 2703(d); id. § 3123(a)(1). Eventually, the parties could reach no further agreement, and requested that the Court resolve the petitioners' claims. Leopold, 300 F.Supp.3d at 79.

         On February 26, 2018, the Court granted in part and denied in part the petitioners' petitions. See Order. The Court explained, in an accompanying Memorandum Opinion, that the petitioners' First Amendment right of access claim failed because the petitioners had failed to establish “the prerequisite [] showing [of] a longstanding tradition of public access . . . as to the PR/TT and SCA materials at issue.” Leopold, 300 F.Supp.3d at 85. Further, no retrospective right of access under the common law was recognized, in light of the considerable administrative burden that such extensive unsealing of nearly a decade's worth of surveillance materials would impose on the USAO and the Clerk's Office, due to the necessity of identifying, reviewing and redacting sensitive law enforcement and privacy-protected information from any unsealed records. Id. at 97-103. The Court held, however, that the common law afforded the petitioners a limited prospective right of access to certain information on the materials sought “in light of the changes recently adopted by the USAO and Clerk's Office in the processing of such materials.” Id. at 85. Specifically, the Court held that the petitioners enjoyed a prospective common law right of access to information, to be disclosed periodically, “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.” Id. at 108.

         The petitioners have now filed a motion for reconsideration, see Pet'rs' Mot. Reconsideration, which is ripe for review.

         II. LEGAL STANDARD

         Rule 59(e) of the Federal Rules of Civil Procedure allows a party to file “[a] motion to alter or amend a judgment.” Fed.R.Civ.P. 59(e). A Rule 59(e) motion is “discretionary and need not be granted unless the district court finds that there is an intervening change of controlling law, the availability of new evidence, or the need to correct a clear error or prevent manifest injustice.” Messina v. Krakower, 439 F.3d 755, 758 (D.C. Cir. 2006) (quoting Firestone v. Firestone, 76 F.3d 1205, 1208 (D.C. Cir. 1996)). As the D.C. Circuit recently stressed, “the reconsideration or amendment of a judgment is nonetheless an extraordinary measure.” Leidos, Inc. v. Hellenic Republic, 881 F.3d 213, 217 (D.C. Cir. 2018). A Rule 59(e) motion “may not be used to relitigate old matters, or to raise arguments or present evidence that could have been raised prior to the entry of judgment, ” id. (quoting Exxon Shipping v. Baker, 554 U.S. 471, 486 n.5 (2008)), and “is ‘not a vehicle to present a new legal theory that was available prior to judgment, '” id. (quoting Patton Boggs LLP v. Chevron Corp., 683 F.3d 397, 403 (D.C. Cir. 2012)). Thus, “Rule 59(e) is not available to a party who ‘could have easily avoided the outcome, but instead elected not to act until after a final order had been entered.'” Id. at 220 (quoting Ciralsky v. CIA, 355 F.3d 661, 665 (D.C. Cir. 2004)).

         III. DISCUSSION

         Having identified no “intervening change of controlling law” or new and previously unavailable evidence, the petitioners are entitled to reconsideration only if the Court committed “clear error” or worked “manifest injustice.” Messina, 439 F.3d at 758 (quoting Firestone, 76 F.3d at 1208). The petitioners contend that reconsideration is appropriate because the Court erred in concluding that (1) the First Amendment affords no right of access to judicial records relating to SCA warrants, § 2703(d) orders, and PR/TT orders, and (2) the common law affords the petitioners only a limited, prospective right of access to these records.[1] Additionally, the petitioners ask the Court to (3) clarify the factual basis of its conclusion as to the common law right of access. As detailed below, the petitioners identify no error in the Court's analysis, much less error that is “clear” or gives rise to “manifest injustice.” Id. The petitioners thus are not entitled to reconsideration.

         A. The Court Did Not Err in Concluding That SCA Warrants Are Analogous to Subpoenas Rather Than to Traditional Search Warrants.

         To establish a right of access to judicial records under the First Amendment, a petitioner must show both (1) “an ‘unbroken, uncontradicted history' of openness” as to the materials to which access is sought and that (2) “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)). “A new procedure that substituted for an older one” is “evaluated by the tradition of access to the older procedure.” United States v. El-Sayegh, 131 F.3d 158, 161 (D.C. Cir. 1997).

         The Court concluded that the First Amendment afforded no right of access to the judicial records at issue because the petitioners had failed to show that SCA and PR/TT materials either historically have been publicly available or may be analytically substituted for materials to which courts have recognized a First Amendment right of access. Leopold, 300 F.Supp.3d at 85-91.[2]In reaching this conclusion, the Court determined that SCA warrants, § 2703(d) orders, and PR/TT orders are more analogous to subpoenas, to which no recognized First Amendment right of access attaches, than to traditional search warrants. Id. at 88-91.

         The petitioners argue that the Court erred in concluding that SCA warrants, § 2703(d) orders, and PR/TT orders are more analogous to subpoenas than to traditional search warrants. Pet'rs' Mem. Supp. Mot. Reconsideration (“Pet'rs' Mem.”) at 6, ECF No. 55.[3] Specifically, the petitioners make the following arguments, several of which the Court previously rejected: (1) the SCA's use of the term “warrant” establishes that SCA warrants are akin to traditional search warrants, id. at 6, 9, 11; (2) SCA warrants do not differ sufficiently as to method of execution from traditional search warrants so as to be more like subpoenas, id. at 7; (3) the practical inability of a target or subject of an ongoing criminal investigation to challenge an SCA warrant prior to execution renders an SCA warrant akin to a traditional search warrant, id. at 7-8; and (4) a Fourth Amendment search requires a warrant, id. at 8. The petitioners further contend that: (5) the Court's analysis will diminish journalists' ability to resist government efforts to collect evidence in their possession relevant to a law enforcement investigation, id. at 12-15; (6) § 2703(d) and PR/TT order materials are more analogous to traditional search warrants than to subpoenas, id. at 15-16; (7) the Court failed to address the petitioners' asserted right of access to court dockets, id. at 17-18; and (8) the Reporters Committee has from the beginning sought realtime unsealing of docket information, id. at 18. These arguments are addressed in turn.

         1. The Court Correctly Concluded That the SCA's “Warrant” Nomenclature Does Not Support a First Amendment Right of Access.

         First, the petitioners argue that the SCA's use of the term of art “warrant” in § 2703(a) shows that Congress intended “that the public ha[ve] a First Amendment right of access to records related to a warrant once the related investigation has come to an end.” Id. at 6. The Court addressed and rejected this argument in recognizing that “First Amendment analysis looks to the substance of the government's powers rather than how an Act nominally refers to those powers.” Leopold, 300 F.Supp.3d at 88 (quoting Big Ridge, Inc. v. Fed. Mine Safety & Health Review Comm'n, 715 F.3d 631, 646 (7th Cir. 2013) (alterations and internal quotation marks omitted)). To determine whether an SCA warrant is analogous to a traditional search warrant or to a subpoena, the Court reasoned, “requires determining the procedures' degree of functional similarity, rather than looking to labels.” Id. As a matter of function and substance, an SCA warrant is more like a subpoena than a traditional search warrant. See Id. at 88-91. The petitioners do not explain why “labels, ” id., rather than function and substance, should govern analysis of whether SCA warrants should “be evaluated by the tradition of access to” traditional search warrants or subpoenas, El-Sayegh, 131 F.3d at 161. This is not to say the word choice on what to call an SCA warrant is irrelevant to its substance and function. After all, “when Congress employs a term of art, it presumably knows and adopts the cluster of ideas that were attached” to that term. FAA v. Cooper, 132 S.Ct. 1441, 1449 (2012). Thus, the language Congress uses to describe SCA warrants may help to understand an SCA warrant's substantive and functional content, but a label is not dispositive.[4]

         As this Court previously has explained, however, Congress's purpose in using the term “warrant” in the SCA was to “import[] some-but not all-of the requirements of Rule 41, including, most importantly, the probable cause requirement.” In re Search of Info. Associated with [redacted]@gmail.com that is Stored at Premises Controlled by Google, Inc. (“Google”), No. 16-MJ-00757 (BAH), 2017 WL 3445634, at *21 (D.D.C. July 31, 2017).[5] The question here is not whether or not to respect Congress's decision to “adopt[]” into the SCA “the cluster of ideas that were attached” to the term “warrant, ” but rather, which particular ideas Congress intended to include in the “cluster of ideas” “adopted” into the SCA. Cooper, 132 S.Ct. at 1449.

         Nothing in the SCA's text, structure, or legislative history suggests a congressional design to incorporate into the SCA any “understanding that the public has a First Amendment right of access to records related to a warrant once the related investigation has come to an end.” Pet'rs' Mem. at 6. Indeed, as Google noted, an SCA warrant provides for less public disclosure regarding government collection of information than does a traditional search warrant in at least one respect: “unlike a [traditional] search warrant, which requires that the warrant and receipt for property taken be left with ‘the person from whom, or from whose premises, the property was taken,' . . . no notice to the customer is required to be given by the government when using an SCA warrant.” 2017 WL 3445634, at *19 (quoting Fed. R. Crim. P. 41(f)(1)(C)). The government, under § 2705(b), also may preclude a service provider from notifying a customer of an SCA warrant's existence, id., “for such period as the court” that approved the SCA warrant “deems appropriate, ” 18 U.S.C. § 2705(b). A person subject to a search and seizure pursuant to a traditional search warrant is entitled to be notified of such search and seizure, while a person whose information the government obtains through an SCA warrant is not entitled to know the government has obtained such information. See Google, 2017 WL 3445634, at *22 (noting the SCA's “omission of any user notification requirement”). Congress's provision of less public disclosure regarding searches and seizures conducted pursuant to SCA warrants than those conducted pursuant to traditional search warrants belies the notion that Congress, merely by employing the term “warrant, ” designed SCA warrants to disclose the government's collection of evidence to the same extent as does a traditional search warrant.

         That an SCA warrant incorporates the probable cause standard, see 18 U.S.C. § 2703(a), does not make an SCA warrant more akin to a traditional search warrant, because an SCA warrant, like a subpoena, lacks those features of a traditional search warrant that necessitate the probable cause standard in the first place. “[T]he immediacy and intrusiveness of a search and seizure conducted pursuant to a warrant demand the safeguard of demonstrating probable cause to a neutral judicial officer before the warrant issues.” In re Subpoena Duces Tecum, 228 F.3d 341, 348 (4th Cir. 2000). A subpoena, in contrast, “requires the recipient of the order to turn over evidence to the government within a specified period of time” and provides ex ante opportunity to challenge disclosure, and so “do[es] not require probable cause” to issue. Orin S. Kerr, A User's Guide to the Stored Communications Act, and A Legislator's Guide to Amending It, 72 Geo. Wash.L.Rev. 1208, 1211 (2004).[6] As this Court has explained, an SCA warrant is more akin to a subpoena than to a traditional search warrant as to both “method of execution and opportunity for pre-disclosure challenge, ” Leopold, 300 F.Supp.3d at 88, in that an SCA warrant compels a recipient to hand over information rather than authorizing government agents' physical intrusion to seize it, and is subject to pre-execution challenge, see Id. at 88-90. Thus, an SCA warrant shares neither feature of a traditional search warrant that necessitates the probable cause standard. The fact that Congress, in SCA's §2703(a), accorded the content of wire and electronic communications held by providers of electronic communication services (“ECS”) or remote computing services (“RCS”) heightened protection with a probable cause requirement before a government entity is authorized to compel disclosure does not otherwise render an SCA warrant more akin to a traditional search warrant than to a subpoena.

         The petitioners attempt to bolster their argument by pointing to the CLOUD Act, enacted as part of the Consolidated Appropriations Act, 2018, Pub. L. 115-141. In the petitioners' view, this legislation “makes clear that Congress used ‘warrant' in the SCA as a term of art.” Pet'rs' Reply Supp. Mot. (“Pet'rs' Reply”) at 5, ECF No. 59. Under the CLOUD Act,

[a] provider of [ECS] or [RCS] shall comply with the obligations of this chapter to preserve, backup, or disclose the contents of a wire or electronic communication and any record or other information pertaining to a customer or subscriber within such provider's possession, custody, or control, regardless of whether such communication, record, or other information is located within or outside of the United States”

18 U.S.C. § 2713. The petitioners acknowledge the “considerable case law establishing that subpoenas apply to information stored abroad, ” whereas “conventional warrants . . . do not apply abroad unless a statute expressly permits it, ” Pet'rs' Reply at 7 (internal quotation marks omitted); see Google, 2017 WL 3445634, at **14-15, and argue that Congress's enactment of the CLOUD Act shows that Congress intended an SCA warrant to be akin to a traditional search warrant, because “[i]f Congress intended SCA warrants to be a type of subpoena, there would be no need to pass the CLOUD Act.” Pet'rs' Reply at 7; see also Id. (“If SCA search warrants are indeed a form of subpoena, the CLOUD Act would have been superfluous.”). This reasoning ignores the seemingly (but apparently not) obvious reality that Congress just as likely enacted the CLOUD Act precisely to clarify that an SCA warrant is functionally analogous to a subpoena, rather than to a traditional search warrant, because Congress feared the Supreme Court would reach a contrary (and, in Congress's view, erroneous) conclusion in the then-pending appeal from the Second Circuit of the Microsoft decision.[7] The CLOUD Act's enactment thus, if anything, shows that Congress intended an SCA warrant to function as a subpoena, rather than as a traditional search warrant.

         2. An SCA Warrant's Method of Execution is More Akin to That of a Subpoena Than That of a Traditional Search Warrant.

         The petitioners argue that an SCA warrant's “typical method of execution . . . does not establish that an SCA search warrant is more akin to a subpoena than to a conventional, brick-and-mortar search warrant.” Pet'rs' Mot. at 7. First, the petitioners note, “brick-and-mortar search warrants may also require third-party compliance.” Id. (emphasis added). This is true enough, but an SCA warrant's execution always requires a third-party provider's compliance, see 18 U.S.C. § 2703(a), whereas a traditional search warrant's execution does not, see generally Fed. R. Crim. P. 41. An SCA warrant is more analogous to a subpoena than to a traditional search warrant in this respect. Second, the petitioners note that “[a]n agent's physical presence is not precluded in the execution of an SCA search warrant.” Pet'rs' Mot. at 7 (alterations and internal quotation marks omitted). This too is true enough, but a traditional search warrant's execution always entails a government officer's physical presence, see 18 U.S.C. § 3105, whereas an SCA warrant's execution does not, see Id. § 2703(g) (“Notwithstanding section 3105 of this title, the presence of an officer shall not be required for service or execution of a search warrant issued in accordance with this chapter.”).[8] An SCA warrant thus is more analogous to a subpoena than to a traditional search warrant as to method of execution.

         3. A Target's Practical Inability to Move to Quash an SCA Warrant Prior to Execution Does Not Render an SCA Warrant Analogous to a Traditional Search Warrant.

         The petitioners argue that an SCA warrant is more akin to a traditional search warrant than to a subpoena with respect to opportunity for pre-execution challenge because only the provider of ECS or RCS, not the target whose content or records are sought, typically has such opportunity as a practical matter. See Pet'rs' Mem. at 7.[9] The fact that the government generally can prevent a target from learning of an SCA warrant's existence, and thus, from challenging the SCA warrant's execution ahead of time, through non-disclosure and sealing orders does not render an SCA warrant more akin to a traditional search warrant than to a subpoena in this respect. The recipient of the SCA warrant may nonetheless challenge compliance with the subpoena on grounds of scope or undue burden. See, e.g., Matter of Warrant to Search a Certain E-Mail Account Controlled & Maintained by Microsoft Corp., 829 F.3d 197, 200 (2d Cir. 2016) (recognizing that an SCA warrant's recipient may move to quash); cf. 18 U.S.C. §2703(d) (allowing a court to modify or quash order “if the information or records requested are unusually voluminous in nature or compliance with such order otherwise would cause an undue burden on such provider.”).

         Further, ECS and RCS providers to whom SCA warrants are directed, like the targets themselves, have legal incentives to move to quash SCA warrants that appear defective in some regard. The SCA prohibits providers from disclosing to the government contents of or records relating to a target's electronic communications except under certain enumerated circumstances. 18 U.S.C. § 2702(a). One such circumstance is where disclosure is authorized pursuant to § 2703. Id. § 2702(b)(2), (c)(1). The SCA creates a cause of action under which one aggrieved by an SCA violation may sue a provider for damages, including potentially punitive damages. Id. ยง 2707(a)-(c). A ...


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