Forbes Media LLC v. United States ( 2023 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
FORBES MEDIA LLC; THOMAS No. 21-16233
BREWSTER,
D.C. No.
Plaintiffs-Appellants, 4:21-mc-80017-
PJH
v.
UNITED STATES OF AMERICA, OPINION
Defendant-Appellee.
Appeal from the United States District Court
for the Northern District of California
Phyllis J. Hamilton, District Judge, Presiding
In re: APPLICATION OF FORBES No. 21-35612
MEDIA AND THOMAS
BREWSTER TO UNSEAL COURT D.C. No.
RECORDS, 2:21-mc-00007-
______________________________ RSM
FORBES MEDIA LLC; THOMAS
BREWSTER,
Petitioners-Appellants,
2 FORBES MEDIA LLC V. UNITED STATES
v.
UNITED STATES OF AMERICA,
Respondent-Appellee.
Appeal from the United States District Court
for the Western District of Washington
Ricardo S. Martinez, District Judge, Presiding
Argued and Submitted August 12, 2022
San Francisco, California
Filed March 13, 2023
Before: Johnnie B. Rawlinson, Bridget S. Bade, and
Daniel A. Bress, Circuit Judges.
Opinion by Judge Bress
SUMMARY *
All Writs Act
Affirming two district court orders denying petitions to
unseal court records, the panel held that neither the First
Amendment nor the common law provides a right of public
*
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
FORBES MEDIA LLC V. UNITED STATES 3
access to third-party All Writs Act technical assistance
materials relating to ongoing criminal investigations
involving unexecuted arrest warrants.
Under the All Writs Act (“AWA”), federal courts may
order private parties to provide technical assistance to law
enforcement to aid in the execution of arrest warrants. Here,
Forbes Media and Thomas Brewster, a journalist and
associate editor at Forbes (“petitioners”), filed petitions in
the Northern District of California and the Western District
of Washington seeking to unseal past All Writs Act orders
issued to an online travel-booking technology company
related to ongoing criminal investigations in which the
United States had obtained arrest warrants but had been thus
far unable to make the arrests. The district courts in
California and Washington denied petitioners’ motions,
concluding for similar reasons, that there was no qualified
First Amendment or common law right of public access to
sealed AWA technical assistance materials relating to active
warrants, and that the government had a compelling interest
in non-disclosure while the criminal investigations remained
ongoing.
The panel held that neither the First Amendment nor the
common law rights to public access were so expansive as to
encompass the materials sought here—materials that have
traditionally been maintained under seal to avoid exposing
the government’s criminal investigations and compromising
its pursuit of fugitives. In determining that the First
Amendment’s right of access did not attach, the panel
applied the “experience and logic” test set forth in Press-
Enter. Co. v. Superior Court, 478 U.S. 1, 7 (1986), and
concluded that it was aware of no historical tradition of
public access to proceedings and materials under the AWA
to obtain technical assistance from third parties in executing
4 FORBES MEDIA LLC V. UNITED STATES
arrest warrants. By all accounts, these proceedings have
traditionally taken place ex parte and under seal. Logic
likewise militated against a qualified right of access under
the First Amendment. Providing public access to AWA
technical assistance proceedings in support of unexecuted
sealed arrest warrants could easily expose sensitive law-
enforcement techniques and endanger active criminal
investigations.
Addressing whether common law conferred such a right,
the panel held that petitioners had not demonstrated an
“important public need” justifying disclosure. Given the
similarities cross-cutting AWA third-party technical
assistance proceedings, grand jury proceedings, and pre-
indictment search warrant materials, as a matter of
analogical reasoning, the materials petitioners sought here
were not within the common law right of access. Finally,
and regardless of whether the argument was advanced under
the common law, the First Amendment, or both, the panel
rejected petitioners’ position that the district courts should
have analyzed the right of public access question by focusing
on the types of documents petitioners sought (motions,
orders, etc.) rather than the nature of the AWA proceedings
of which the documents were a part.
COUNSEL
Grayson Clary (argued) and Katie Townsend, Reporters
Committee for Freedom of the Press, Washington, D.C.;
Jean-Paul Jassy, Jassy Vick Carolan LLP, Los Angeles,
California; Ambika Kumar, Davis Wright Tremaine LLP,
Seattle, Washington; for Plaintiffs-Appellants.
FORBES MEDIA LLC V. UNITED STATES 5
Joshua K. Handell (argued), Attorney, Appellate Section,
Criminal Division; Lisa H. Miller, Deputy Assistant
Attorney General; Kenneth A. Polite Jr., Assistant Attorney
General; United States Department of Justice; Washington,
D.C.; Matthew M. Yelovich, Assistant United States
Attorney; Stephanie M. Hinds, United States Attorney for
the Northern District of California; Office of the United
States Attorney; San Francisco, California; Teal L. Miller,
Assistant United States Attorney; Nicholas W. Brown,
United States Attorney for the Western District of
Washington; Office of the United States Attorney; Seattle,
Washington; for Defendant-Appellee.
Mason A. Kortz, Cyber Law Clinic, Harvard Law School,
Cambridge, Massachusetts, for Amicus Curiae Restore the
Fourth.
Aaron Mackey and Jennifer Lynch, Electronic Frontier
Foundation, San Francisco, California; Brett Max Kaufman,
American Civil Liberties Foundation, New York, New
York; Jennifer Stisa Granick, American Civil Liberties
Foundation, San Francisco, California; Jacob A. Snow,
ACLU Foundation of Northern California, San Francisco,
California; Riana Pfefferkorn, Stanford Internet
Observatory, Stanford, California; for Amici Curiae the
Electronic Frontier Foundation, American Civil Liberties
Union Foundation, American Civil Liberties Union
Foundation of Northern California, and Riana Pfefferkorn.
6 FORBES MEDIA LLC V. UNITED STATES
OPINION
BRESS, Circuit Judge:
Under the All Writs Act, federal courts may order private
parties to provide technical assistance to law enforcement to
aid in the execution of arrest warrants. We are asked to
decide whether the First Amendment or the common law
creates a right of public access to third-party technical
assistance proceedings relating to unexecuted arrest
warrants in active criminal investigations. We hold that
neither the First Amendment nor the common law confers
such a right. Both district courts in this consolidated appeal
reached the same conclusion. We affirm.
I
The All Writs Act (AWA), which has its origins in the
Judiciary Act of 1789, provides that federal courts “may
issue all writs necessary or appropriate in aid of their
respective jurisdictions and agreeable to the usages and
principles of law.” 28 U.S.C. § 1651(a). Under the AWA,
a federal court may “issue such commands . . . as may be
necessary or appropriate to effectuate and prevent the
frustration of orders it has previously issued.” United States
v. New York Tel. Co., 434 U.S. 159, 172 (1977). This
includes the power to issue orders to persons “who, though
not parties to the original action or engaged in wrongdoing,”
are nonetheless poised to aid “the implementation of a court
order or the proper administration of justice.” Id. at 174.
Consistent with this authority, we have recognized that
the AWA may be used to order third parties to assist in the
execution of warrants. See Plum Creek Lumber Co. v.
Hutton, 608 F.2d 1283, 1289 (9th Cir. 1979) (“The All Writs
FORBES MEDIA LLC V. UNITED STATES 7
Act . . . permits the district court, in aid of a valid warrant, to
order a third party to provide nonburdensome technical
assistance to law enforcement officers.”). In practical terms,
this means that federal courts may issue orders to private
companies and others to provide technical assistance that
will help law enforcement apprehend a suspect under an
outstanding warrant, or that will otherwise aid an ongoing
criminal investigation. One high-profile example is the
Department of Justice’s 2016 application for an AWA order
that would have required Apple to provide technical
information on how to bypass the security features of an
iPhone belonging to a shooter in the San Bernardino terrorist
attack. With this background, we now turn to the matter
before us.
Thomas Brewster is a journalist and associate editor at
Forbes Media who covers surveillance, security, and privacy
issues. In March 2020, Brewster located an application for
an AWA technical assistance order on the public docket of
the District Court for the Southern District of California
(S.D. Cal.). According to the clerk’s stamp, the application
had been unsealed on February 14, 2020. It appears this
application was unsealed by mistake. Nevertheless,
Brewster lawfully obtained it, and the application is now part
of the public record in this case and others.
In the S.D. Cal. application, the Department of Justice
requested an AWA order compelling Sabre, an online travel-
booking technology company, “to assist in the execution of
a federal arrest warrant by periodically reviewing its records
for evidence that the subject of the arrest warrant is
traveling.” The application requested that, every week for
six months, Sabre “provide representatives of the FBI
complete and contemporaneous ‘real time’ account activity”
for an individual subject to an active warrant. The S.D. Cal.
8 FORBES MEDIA LLC V. UNITED STATES
application explained that Sabre “processes roughly one
third of all air travel reservations,” and that other courts had
previously invoked the AWA to order Sabre to assist in the
execution of arrest warrants. For support, the government’s
S.D. Cal. application specifically cited several past AWA
orders issued to Sabre by federal courts in the Western
District of Washington, Northern District of California,
Western District of Pennsylvania, and Eastern District of
Virginia.
In July 2020, Forbes published an online article about the
S.D. Cal. application entitled: “The FBI Is Secretly Using A
$2 Billion Travel Company As A Global Surveillance Tool.”
This article, which Brewster authored, identified by name
the fugitive who was the subject of the arrest warrant, as well
as the details of the government’s request for assistance to
Sabre. The article also linked to an unredacted copy of the
S.D. Cal. application, which was hosted on a third-party
server. That linked application contained personal
identifying information of the fugitive, including his foreign
address and passport number.
Maintaining that AWA orders raise vital issues of public
concern, Brewster and Forbes (petitioners) filed petitions in
the Northern District of California and the Western District
of Washington seeking to unseal court records for those
matters referenced in the S.D. Cal. application. Each
petition requested access to (1) any AWA order that had
issued; (2) the government’s application for such an order
and any supporting documentation; (3) any other records,
such as sealing motions and orders; and (4) the relevant
docket sheets. The AWA orders in these cases related to
ongoing criminal investigations in which the United States
FORBES MEDIA LLC V. UNITED STATES 9
had obtained arrest warrants but had been thus far unable to
make the arrests. 1
The district courts in California and Washington denied
petitioners’ motions. For similar reasons, the courts
concluded that there is no qualified First Amendment or
common law right of public access to sealed AWA technical
assistance materials relating to active warrants, and that the
government has a compelling interest in non-disclosure
while the criminal investigations remain ongoing. Both
courts also found that releasing the sealed information with
redactions would not adequately protect the government’s
interests in ensuring that active criminal investigations are
not jeopardized. The only notable difference between the
two rulings is that the Northern District of California sua
sponte ordered the government to give notice when its
criminal investigation closed or became public, on the theory
that, as to a potential right of access, “a different court may
come to a different conclusion in a post-investigative
context.”
Petitioners appealed both decisions, and we consolidated
the appeals. We have jurisdiction under 28 U.S.C. § 1291.
II
Matters decided in the courts are often of considerable
public interest, and we have no reason to question petitioners
when they assert that the public has an interest in knowing
more about how AWA orders are used to enlist private
companies to assist in criminal investigations. The question
here, however, is not one of public interest but public access.
1
Petitioners filed similar requests in the Western District of
Pennsylvania and the Eastern District of Virginia, which we will discuss
further below.
10 FORBES MEDIA LLC V. UNITED STATES
And greater public attention does not inevitably mean
greater disclosure when competing interests are at stake.
The First Amendment and common law rights to public
access that petitioners invoke are neither all-encompassing
nor absolute. In this case, we hold that those rights are not
so expansive as to encompass the materials sought here—
materials that have traditionally been maintained under seal
to avoid exposing the government’s criminal investigations
and compromising its pursuit of fugitives. Whether the
analysis would be different when the arrests have been made
and the criminal investigations completed is a matter for
another day. Here, we hold that neither the First Amendment
nor the common law provides a right of public access to
sealed AWA technical assistance materials relating to
ongoing criminal investigations involving unexecuted arrest
warrants.
A
We begin with the First Amendment, which provides a
qualified right of public access to certain governmental
proceedings. See Press-Enter. Co. v. Superior Court, 478
U.S. 1, 7 (1986) (Press Enterprise II); First Amend. Coal. of
Ariz., Inc. v. Ryan, 938 F.3d 1069, 1074 (9th Cir. 2019). This
right extends to some criminal proceedings, such as trials,
jury-selection processes, and preliminary hearings. First
Amend. Coal., 938 F.3d at 1078 (citing Press-Enterprise II,
478 U.S. at 13; Press-Enter. Co. v. Superior Court, 464 U.S.
501, 512 (1984) (Press-Enterprise I); Globe Newspaper Co.
v. Superior Court, 457 U.S. 596, 606 (1982); Richmond
Newspapers, Inc. v. Virginia, 448 U.S. 555, 580 (1980)
(plurality op.)). The First Amendment right of access also
extends to “various documents filed in criminal
proceedings,” such as plea agreements. Id.FORBES MEDIA LLC V. UNITED STATES 11
But the First Amendment is not an all-access pass to any
court proceeding or court record. As we have explained,
although “[e]very judicial proceeding, indeed every
governmental process, arguably benefits from public
scrutiny to some degree,” there are situations in which
“complete openness would undermine important values that
are served by keeping some proceedings closed to the
public.” Times Mirror Co. v. United States, 873 F.2d 1210,
1213 (9th Cir. 1989). The public generally has presumptive
access to judicial opinions, hearings, and court filings, but
we would not think the public should be privy to judicial
deliberations. The public similarly may view many aspects
of jury trials, but we do not allow a live video feed from the
jury room.
The same is true of certain aspects of criminal
proceedings more generally. Grand jury proceedings are the
classic example because, in that context, opening the
courtroom and unveiling court files could dramatically
imperil criminal investigations. Grand jury proceedings
have thus long taken place outside of public view. See Press
Enterprise II, 478 U.S. at 9; Douglas Oil Co. v. Petrol Stops
Nw., 441 U.S. 211, 218 (1979); Times Mirror, 873 F.2d at
1215; see also Phoenix Newspapers, Inc. v. U.S. Dist. Court
for Dist. of Ariz., 156 F.3d 940, 946 (9th Cir. 1998) (“Of
course, there is no right of access which attaches to all
judicial proceedings, even all criminal proceedings.”).
The competing interests at stake in this area led the
Supreme Court to adopt what has become known as the
“experience and logic” test. See Press-Enterprise II, 478
U.S. at 8–9. To determine if a qualified First Amendment
right of access attaches, we must consider (1) experience:
“whether the type of proceeding at issue has been
traditionally conducted in an open fashion,” Oregonian
12 FORBES MEDIA LLC V. UNITED STATES
Publ’g Co. v. U.S. Dist. Court for Dist. of Oregon, 920 F.2d
1462, 1465 (9th Cir. 1990); and (2) logic: “whether public
access plays a significant positive role in the functioning of
the particular process in question.” Press-Enterprise II, 478
U.S. at 8. Even with a sufficient showing under this test,
however, a qualified First Amendment right can still be
“overcome by a compelling governmental interest” in
nondisclosure. In re Copley Press, Inc., 518 F.3d 1022, 1026
(9th Cir. 2008).
Turning to the “experience” and “logic” analysis, we
first conclude with little difficulty that petitioners have not
made a sufficient showing under the “experience” prong. In
evaluating “experience,” we consider “whether the place and
process have historically been open to the press and general
public.” Press-Enterprise II, 478 U.S. at 8. Here, we are
aware of no historical tradition of public access to
proceedings and materials under the AWA to obtain
technical assistance from third parties in executing arrest
warrants. By all accounts, these proceedings have
traditionally taken place ex parte and under seal.
In this respect, AWA technical assistance proceedings
are similar to other court proceedings relating to criminal
investigations that have been traditionally conducted outside
of public view. Grand jury proceedings, as we have noted,
have long been kept secret. The same is true of pre-
indictment search warrant proceedings. And in Times
Mirror, the precedent most relevant to this case, we
specifically held that “members of the public have no right
of access to search warrant materials while a pre-indictment
investigation is under way.” 873 F.2d at 1211. We
explained in Times Mirror that search warrants are
traditionally issued upon the government’s ex parte
applications, which courts consider in camera. Id. at 1214.
FORBES MEDIA LLC V. UNITED STATES 13
We concluded that because the process for issuing warrants
“has always been considered an extension of the criminal
investigation itself,” it “follow[ed] that the information
disclosed to the magistrate judge in support of the warrant
request is entitled to the same confidentiality accorded other
aspects of the criminal investigation.” Id. That same
reasoning inheres here. AWA technical assistance
proceedings, which have been traditionally conducted under
seal, are part and parcel of criminal investigations in ways
analogous to search warrant proceedings. And here, as in
both Times Mirror and the grand jury context, “there is no
history of unrestricted access” to the materials petitioners
seek. Id.Trying a different angle, petitioners argue that
proceedings for injunctive relief are traditionally open to the
public, and that because AWA technical assistance
proceedings can lead to orders that are injunctive in nature,
we should regard AWA technical assistance proceedings as
presumptively public, too. We reject this logic, which
operates at a stratum of abstraction far removed from the
nature of the AWA proceedings at issue here. The Supreme
Court has instructed that in this area of constitutional law,
“the First Amendment question cannot be resolved solely on
the label we give the event, i.e., ‘trial.’” Press-Enterprise II,
478 U.S. at 7. It is therefore not enough, as petitioners would
have it, that AWA technical assistance proceedings may
look like injunctive relief proceedings in some stylized
sense. In an area of First Amendment jurisprudence driven
by “functional concerns,” Cal. First Amend. Coal. v.
Woodford, 299 F.3d 868, 877 (9th Cir. 2002), petitioners’
analogy to injunctive relief is far too formalistic. Any
similarity between AWA technical assistance proceedings
and typical requests for injunctive relief—which do not
14 FORBES MEDIA LLC V. UNITED STATES
fairly approximate AWA proceedings anyway—is
insufficient to establish the history of open access required
under the Supreme Court’s “experience” inquiry.
The absence of experience, however, does not
necessarily foreclose a qualified right of public access under
the First Amendment. We have held that “logic alone, even
without experience, may be enough to establish the right.”
Copley Press, 518 F.3d at 1026. But in this instance, logic
likewise militates against a qualified right of access under
the First Amendment.
As we noted above, under “logic” we consider “whether
public access plays a significant positive role in the
functioning of the particular process in question.” Press-
Enterprise Co. II, 478 U.S. at 8. Not every request for public
access fits that bill. The Supreme Court has recognized that,
“[a]lthough many governmental processes operate best
under public scrutiny, it takes little imagination to recognize
that there are some kinds of government operations that
would be totally frustrated if conducted openly.” Id. at 8–9.
We have thus made clear that “[w]here the harm caused by
disclosure of judicial records outweighs the benefit of
disclosure to the public, public access no longer ‘plays a
significant positive role in the functioning of the particular
process in question.’” United States v. Index Newspapers,
766 F.3d 1072, 1087–88 (9th Cir. 2014) (quoting Press-
Enterprise Co. II, 478 U.S. at 8).
In this case, we conclude that public access would not
play a significant positive role in the functioning of AWA
technical assistance proceedings involving outstanding
arrest warrants that remain sealed. Indeed, far from playing
a significant positive role, allowing public access in these
circumstances would likely have deleterious consequences.
FORBES MEDIA LLC V. UNITED STATES 15
Our decision in Times Mirror is highly instructive on this
point.
There, in holding that the First Amendment did not
create a qualified right of access to search warrants and
related materials at the pre-indictment stage of a criminal
investigation, we concluded that “logic” did not support
disclosure. 873 F.2d at 1214–18. We acknowledged the
potential benefits of public access, noting that “open warrant
proceedings might operate as a curb on prosecutorial or
judicial misconduct.” Id. at 1217 (citation and quotation
marks omitted). And we further accepted that “public access
would doubtless have some positive effect by increasing the
flow of information to the public about the workings of the
government and by deterring judicial and law enforcement
officers from abusing the warrant process.” Id. at 1218.
These potential benefits are similar to the ones that
petitioners advance in this case.
But these asserted benefits did not rule the day in Times
Mirror, and they do not do so here. In Times Mirror, “logic”
did not support public access because the “clearly
legitimate” interests supporting disclosure were “more than
outweighed by the damage to the criminal investigatory
process that could result from open warrant proceedings.”
Id. at 1215. Analogizing to grand jury proceedings, which
we viewed as “indistinguishable,” we explained that open
search warrant proceedings would jeopardize criminal
investigations. Id. Among other things, if the search warrant
proceedings or related documents were made public, “there
would be the obvious risk that the subject of the search
warrant would learn of its existence and destroy evidence of
criminal activity before the warrant could be executed.” Id.We also cited the importance of protecting the privacy of
persons identified in the warrants, as well as the need to
16 FORBES MEDIA LLC V. UNITED STATES
avoid encouraging suspects to flee the jurisdiction. Id. at
1215–16. We concluded that for these reasons, “the
incremental value in public access is slight compared to the
government’s interest in secrecy at this stage of the
investigation.” Id. at 1218; see also id. at 1217 (“[W]hatever
the social utility of open warrant proceedings and materials
while a pre-indictment investigation is ongoing, we believe
it would be outweighed by the substantial burden openness
would impose on government investigations.”).
Similar reasoning supports our analysis under the “logic”
prong here. Providing public access to AWA technical
assistance proceedings in support of unexecuted sealed
arrest warrants could easily expose sensitive law-
enforcement techniques and endanger active criminal
investigations. Persons subject to sealed arrest warrants
could learn not only that the government is on their trail but
also the means the government is using to locate them.
Criminal actors not yet subject to investigation might also
catch on to the government’s broader investigatory methods.
This could make it harder to catch fugitives, who might
change their practices to avoid capture. Public disclosure
could also, among other adverse consequences, create safety
risks for law enforcement, lead to the destruction of
evidence, and compromise sources who assist the
government.
Included in the record in this case is a declaration from
FBI Special Agent Jared Brown that lays out how the public
disclosure of AWA technical assistance proceedings and
records could impede criminal investigations. We find this
declaration persuasive. It confirms that publicizing the
details of secret law enforcement efforts to arrest suspected
wrongdoers “would hinder, rather than facilitate, . . . the
government’s ability to conduct criminal investigations.”
FORBES MEDIA LLC V. UNITED STATES 17
Times Mirror, 873 F.2d at 1215. Indeed, because an arrest
warrant pertains to a suspected criminal himself, disclosure
of AWA technical assistance proceedings involving active
arrest warrants may compromise criminal investigations to
an even greater degree than the public release of search
warrants. This is especially so considering that the
government uses AWA technical assistance orders to locate
international fugitives, who may pose unique dangers to
public safety. The “logic” analysis of Times Mirror applies
perforce in this context.
We acknowledge petitioners’ central rejoinder that
greater public scrutiny of AWA technical assistance
proceedings could act as a check on government overreach.
But that is the same worthy interest that we ultimately found
insufficient in Times Mirror. See 873 F.2d at 1215–16,
1218. Faced with that precedent, petitioners theorize that the
risk of government overreach is greater here than it was in
Times Mirror. In particular, petitioners contend that, in the
search warrant context, the public will eventually have the
chance to assess potential abuses of the search warrant
process because of the availability of suppression motions
and civil actions for violations of constitutional rights. In
petitioners’ view, these kinds of back-end public checks are
not available for AWA technical assistance orders.
We are not taken by petitioners’ efforts to avoid the
logical and persuasive force of Times Mirror. Although
Times Mirror mentioned the availability of after-the-fact
safeguards such as suppression motions, see id. at 1218, this
consideration was not dispositive, but was rather one piece
of our broader “logic” balancing. We did not dwell on the
point long, perhaps because it goes only so far: search
warrants are not invariably the subject of legal challenges,
nor do they invariably lead to prosecutions.
18 FORBES MEDIA LLC V. UNITED STATES
Regardless, the notion that technical assistance
proceedings will forever go unchallenged or unnoticed
absent a constitutional right of access is overstated.
Petitioners themselves assert that there today exists a robust
public debate over these investigatory devices. The
government acknowledges that AWA technical assistance
orders may still be subject to challenge through different
legal pathways, such as by the suspects themselves or by
entities like Sabre, who receive the AWA orders. Cf. United
States v. Mountain States Tel. & Telegraph Co., 616 F.2d
1122, 1132–33 (9th Cir. 1980) (“[W]e believe that a
telephone company whose cooperation in electronic
surveillance is sought should be afforded reasonable notice
and an opportunity to be heard prior to the entry of any order
compelling its assistance.”). Petitioners and others also
remain free to raise their concerns with the political
branches, which have the ability to craft more specific rules
that cannot be enacted judicially under the guise of the First
Amendment or the common law. And we reiterate that it
remains a separate question whether presumptive rights of
access would attach to AWA materials once the
government’s criminal investigation ends and the suspect is
apprehended—an issue for a future case.
In short, whatever differences one might posit between
AWA technical assistance proceedings involving active
arrest warrants, on the one hand, and sealed pre-indictment
search warrants, on the other, the differences are not
significant enough to alter the overall “logic” balancing we
performed in Times Mirror. “Logic,” like “experience,” tells
us that there is no qualified First Amendment right of access
to AWA technical assistance proceedings and materials
relating to unexecuted arrest warrants in ongoing criminal
investigations.
FORBES MEDIA LLC V. UNITED STATES 19
B
We turn next to whether the common law confers such a
right. Courts have recognized a common law “right to
inspect and copy public records and documents, including
judicial records and documents.” Nixon v. Warner
Commc’ns, Inc., 435 U.S. 589, 597 & n.7 (1978). The
Supreme Court has emphasized, however, that this right “is
not absolute.” Id. at 598. Under our case law, “[u]nless a
particular court record is one ‘traditionally kept secret,’ a
‘strong presumption in favor of access’ is the starting point.”
Kamakana v. City and Cnty. of Honolulu, 447 F.3d 1172,
1178 (9th Cir. 2006) (quoting Foltz v. State Farm Mut. Auto
Ins. Co., 331 F.3d 1122, 1135 (9th Cir. 2003)) (emphasis
added). When that presumption attaches, the party seeking
to overcome it must point to “compelling reasons”
supporting sealing, supported by specific factual findings.
Id.As we just noted, however, there is an important “unless”
here: the common law presumption of access does not even
come into play for court records “traditionally kept secret.”
This carve-out is a “term of art” that refers to materials for
which “there is ‘neither a history of access nor an important
public need justifying access.’” Id. at 1184–85 (quoting
Times Mirror, 873 F.2d at 1219; emphasis omitted). Thus,
under the common law, records that have “traditionally been
kept secret for important policy reasons” are “not subject to
the right of public access at all.” Id. at 1178.
Our cases have not been precise in detailing how the First
Amendment and common law rights may differ in scope
once the rights attach, although we have observed that “[t]he
First Amendment is generally understood to provide a
stronger right of access than the common law.” United
20 FORBES MEDIA LLC V. UNITED STATES
States v. Bus. of Custer Battlefield Museum & Store, 658
F.3d 1188, 1197 n.7 (9th Cir. 2011). The question here,
however, is whether the rights attach in the first place. And
our cases indicate that, in considering that threshold
question, the common law, like the First Amendment, turns
on roughly similar considerations of historical tradition and
the risks and benefits of public disclosure. See Kamakana,
447 F.3d at 1184–85.
The paradigmatic examples of records not subject to the
common law right of public access are, once again, “grand
jury transcripts and warrant materials in the midst of a pre-
indictment investigation.” Id. at 1185 (citing Times Mirror,
873 F.2d at 1219). But we have never suggested these are
the only examples. Given the similarities cross-cutting
AWA third-party technical assistance proceedings, grand
jury proceedings, and pre-indictment search warrant
materials, as a matter of analogical reasoning we conclude
that the materials petitioners seek are not within the common
law right of access, either.
As we already explained in the context of the First
Amendment, there is no history of public access to AWA
third-party technical assistance proceedings relating to
active arrest warrants. In a footnote in their opening brief,
petitioners identify several district court cases supposedly
establishing such a tradition in the common law. See United
States v. Burns, 2019 WL 2079832 (M.D.N.C. May 10,
2019); Matter of the United States, 256 F. Supp. 3d 246, 252
(E.D.N.Y. 2017); In re Application of the United States for
an Order Directing a Provider of Commc’n Servs. to
Provide Tech. Assistance, 128 F. Supp. 3d 478, 483–84
(D.P.R. 2015); Application of the United States, 407 F. Supp.
398, 411 (W.D. Mo. 1976).
FORBES MEDIA LLC V. UNITED STATES 21
We do not agree. We doubt that a scattered set of non-
binding trial court orders from other jurisdictions could
demonstrate the required common law tradition of public
access. But in any event, these cases do no such thing.
Burns involved a request to an already convicted defendant
for technical assistance in unlocking his own hard drive.
Burns, 2019 WL 2079832, at *1–5. And the remaining cases
involved courts that declined to issue AWA technical
assistance orders and that did not otherwise disclose
sensitive information relating to active arrest warrants.
These cases do not support a tradition of access to AWA
technical assistance proceedings relating to ongoing
criminal investigations.
Under the common law, petitioners likewise have not
demonstrated an “important public need” justifying
disclosure. Times Mirror, 873 F.2d at 1219. As we
explained in the First Amendment context, disclosure of
AWA technical assistance proceedings while the suspect is
at large and the criminal investigation underway could
compromise criminal investigations and risk exposing
sensitive investigative methods. See id. (explaining that
there was no “important public need” for disclosure under
the common law because “[a]s we explained in our
discussion of appellants’ First Amendment claim, the ends
of justice would be frustrated, not served, if the public were
allowed access to warrant materials in the midst of a
preindictment investigation into suspected criminal
activity”).
Petitioners advance two other interests that they claim
demonstrate an important public need for access to AWA
third-party technical assistance proceedings. Neither
persuades us. First, petitioners argue that disallowing access
to these proceedings “would deny Congress the insight
22 FORBES MEDIA LLC V. UNITED STATES
necessary to craft better-tailored legislation” in this area.
But there is no basis to believe that Congress needs our
assistance on this front. Congress’s ability to obtain
information does not depend on the efforts of private
litigants like petitioners because Congress has its own
“broad” powers to “secure needed information in order to
legislate.” Trump v. Mazars USA, LLP, 140 S. Ct. 2019,
2031 (2020) (citation and quotation marks omitted). It
would not be appropriate for us to fashion a new common
law right of access in service of a coordinate branch’s
alleged need for information when that branch has sufficient
means at its disposal for obtaining the information it needs.
Second, petitioners maintain that nondisclosure of AWA
technical assistance materials will “cut short public debate
on the difficult, controversial legal questions
characteristically presented in this context.” This is
essentially a reprise of the argument we rejected above,
namely, that we should recognize a presumptive right of
access because greater transparency can act as a check on
government power. We again do not doubt this potential
benefit of disclosure. But as in Times Mirror, we simply
conclude that it is “more than outweighed by the damage to
the criminal investigatory process” that would result. Times
Mirror, 873 F.2d at 1215; see also Index Newspapers LLC,
766 F.3d at 1087 (“[I]t is well established that the harm
caused by disclosure of certain judicial records more than
outweighs any benefit caused by such disclosure.”). And in
this case, the notion that greater disclosure is critical for
public debate is tempered by petitioners’ own representation
that there already exists “a wide-ranging public debate on the
legitimate scope of court-ordered technical assistance.”
FORBES MEDIA LLC V. UNITED STATES 23
C
Finally, and regardless of whether the argument is
advanced under the common law, the First Amendment, or
both, we reject petitioners’ position that the district courts
below should have analyzed the right of public access
question by focusing on the types of documents petitioners
seek (motions, orders, etc.) rather than the nature of the
AWA proceedings of which the documents are a part.
Petitioners maintain, in other words, that we should ask
simply whether certain categories of court documents are
usually publicly available, and, if so, treat them as falling
within a presumptive right of access.
Petitioners’ narrow focus on categories of documents is
not correct. We have never held that in making the threshold
right of public access determination, courts should consider
the categories of documents sought abstracted from the
proceedings in which they were generated. To the contrary,
when we considered whether there was a right of public
access to pre-indictment search warrant materials, we
evaluated the nature of the proceeding itself. See Times
Mirror, 873 F.2d at 1213 (“[T]he public has no right of
access to a particular proceeding without first establishing
that the benefits of opening the proceeding outweigh the
costs to the public.”); id. (“We know of no historical
tradition of public access to warrant proceedings.”); id. at
1215 (“[S]earch warrant proceedings, like grand jury
proceedings, require secrecy.”); id. at 1218 (“[W]e hold that
members of the public have no First Amendment right to
attend warrant proceedings, or to obtain the documents
relating to those proceedings, while the investigation is
ongoing but before indictments have been returned.”); see
also, e.g., Oregonian Publ’g Co., 920 F.2d at 1465 (“[W]e
must decide whether the type of proceeding at issue has
24 FORBES MEDIA LLC V. UNITED STATES
traditionally been conducted in an open fashion.”). This is
the same analysis we conducted above.
In advancing their different approach, petitioners rely on
our decision in Index Newspapers. But a closer reading of
that case shows that petitioners’ position lacks foundation.
In Index Newspapers, two witnesses were subpoenaed to
testify before a federal grand jury. 766 F.3d at 1079. They
both filed motions to quash, which were denied. Id. After
the witnesses continued to refuse to testify, the district court
held contempt proceedings. Id. Those portions of the
contempt proceedings that involved disclosure of the grand
jury materials and proceedings were sealed, but the district
court opened the contempt proceedings to the public when
announcing that the witnesses were in contempt and ordering
them confined. Id. A media organization later sought to
unseal the records of the contempt proceedings. Id. at 1080.
The district court concluded that there was “no public right
of access to grand jury proceedings” or “proceedings held
ancillary to grand jury investigations,” but that it would
unseal transcripts from the open portions of the contempt
proceedings. See id at 1080–81.
On appeal, we carefully evaluated the right of access
questions based on the nature of the proceedings themselves.
We held that there was no First Amendment right of access
to “(1) filings and transcripts relating to motions to quash
grand jury subpoenas; (2) the closed portions of contempt
proceedings containing discussion of matters occurring
before the grand jury; or (3) motions to hold a grand jury
witness in contempt.” Id. at 1084–85. We further held that
any common law right to these materials was “outweighed
by the compelling government interest in maintaining grand
jury secrecy.” Id. at 1085. Our analysis turned not on the
categories of individual documents sought or even on the
FORBES MEDIA LLC V. UNITED STATES 25
“particular proceedings” in that case, but on “the class of
proceedings as a whole,” which were integral to an ongoing
grand jury investigation and involved information from that
investigation. Id. at 1086 (emphasis added); see also id. at
1087 (explaining that “[l]ogic dictates that the record of
proceedings concerning motions to quash grand jury
subpoenas should be closed” because there are “several
compelling reasons why grand jury proceedings should be
kept secret”).
We explained that, for important public interest reasons,
grand jury proceedings were traditionally conducted in
secret. Id. at 1084, 1086–87, 1092–93. It followed that
materials relating to a motion to quash grand jury subpoenas
and a government contempt motion—which were ancillary
to an otherwise secret and ongoing grand jury
investigation—were not subject to a right of access either,
lest public access “frustrate criminal investigations.” Id. at
1093 (quoting Times Mirror, 873 F.2d at 1213). This aspect
of Index Newspapers, which focused on the nature of grand
jury proceedings, fully supports the approach that the district
courts followed here.
The same is true of that portion of Index Newspapers
dealing with the contempt proceeding itself, part of which
was conducted openly in district court. In Index
Newspapers, we regarded the open contempt proceeding as
“better resembl[ing] a criminal trial than . . . a grand jury
proceeding.” Id. at 1089 (quoting United States v. Guerro,
693 F.3d 990, 1001 (9th Cir. 2012)). From that crucial
premise, we reasoned that the public may have a qualified
right of access to a contempt hearing transcript “where there
has been a request to make the hearing public, where the
witness does not object, and where the court is satisfied that
opening the hearing will not thwart the grand jury’s
26 FORBES MEDIA LLC V. UNITED STATES
investigation or jeopardize other witnesses or evidence.” Id.We similarly concluded that “because of the hearings’
similarities to criminal trials,” the orders of contempt and
confinement were also subject to a presumptive right of
public access, “at least when the grand jury witness does not
object and the court determines that the grand jury
investigation will not be compromised.” Id. at 1093.
Properly considered, our analysis of the contempt
proceedings in Index Newspapers did not turn on a formal
typology of documents blind to the proceedings from which
they arose. Instead, we considered the nature of the
proceedings themselves, a task made more challenging
because of the dual nature of the proceedings at issue. In
Index Newspapers, we homed in on the fact that a contempt
proceeding for refusal to testify before a grand jury
effectively straddles the traditional secrecy of grand jury
proceedings and the traditional openness of a criminal trial.
See id. at 1089, 1093. The contempt proceedings, in other
words, drew on and exposed a criminal investigation and
grand jury process, but they involved a criminal prosecution
as well, with resulting detention. In Index Newspapers, this
entangling of traditionally secret and traditionally open
proceedings provided the critical backdrop for how we
analyzed which aspects of the contempt proceedings should
be regarded as presumptively public in nature. Although it
was necessary to discuss the various documents requested in
parsing the dual-nature proceedings, our right of access
analysis remained focused on the nature of the proceedings
and not simply the formal categories of documents at issue. 2
2
Petitioners’ reliance on Index Newspapers as grounds for obtaining
docket sheets is therefore misplaced. In Index Newspapers, we directed
FORBES MEDIA LLC V. UNITED STATES 27
In this case, by contrast, there is no aspect of AWA
technical assistance proceedings that is akin to a criminal
trial or any other traditionally public proceeding. Instead, as
we have explained, AWA technical assistance proceedings
are more analogous to search warrant proceedings during
pre-indictment investigations and grand jury proceedings, as
to which there is no qualified right of public access. See
Times Mirror, 873 F.2d at 1213–16, 1219. Times Mirror is
thus the most relevant precedent here.
For these reasons, we conclude that there is no First
Amendment or common law right of access to AWA
technical assistance proceedings and materials relating to
unexecuted arrest warrants in ongoing criminal
investigations. It is therefore unnecessary for us to decide
whether, even assuming a presumptive right of access,
nondisclosure of these materials was justified. See United
States v. Doe, 870 F.3d 991, 998 (9th Cir. 2017); Kamakana,
447 F.3d at 1178–79.
D
Although we have held that petitioners do not at this time
have a qualified right of access to AWA technical assistance
proceedings, we do not decide whether the analysis would
be different once the suspect is caught and the criminal
investigation concluded. Compare Times Mirror, 873 F.2d
the district court to release docket sheets (with any necessary redactions)
only because the district court had already unsealed certain information.
See 766 F.3d at 1092. Without the docket sheet, “in practice, the public
had no way of accessing the transcript the court intended to unseal.” Id.Index Newspapers merely confirms that redacted docket sheets may be
made available when a qualified right of public access otherwise
attaches; it does not create such a qualified right for docket sheets or for
any other specific type of record.
28 FORBES MEDIA LLC V. UNITED STATES
at 1211 (holding that “members of the public have no right
of access to search warrant materials while a pre-indictment
investigation is under way,” but reserving “whether the
public has a First Amendment right of access to warrant
materials after an investigation is concluded or after
indictments have been returned”), with Business of Custer
Battlefield Museum & Store, 658 F.3d at 1192–94
(recognizing a qualified right of public access to search
warrant materials after the criminal investigation has been
terminated).
As we noted earlier, the district court in the Northern
District of California anticipated this potential distinction
and sua sponte ordered the government to give notice when
its investigation closes or becomes public, so that petitioners
could then file a new application to unseal the AWA
materials in question. The court further ordered the
government in the interim to file annual certifications stating
that its investigation remains ongoing and that the
underlying AWA technical assistance materials remain
sealed. The government did not cross-appeal these aspects
of the Northern District’s orders, and we have no occasion
to consider them.
But picking up on the Northern District’s lead,
petitioners now ask us to impose similar requirements in the
Western District of Washington case. Petitioners further ask
us to preemptively order unsealing once the relevant
criminal investigations end. In the exercise of our discretion,
we decline this request. Petitioners did not seek this relief in
the Western District of Washington. Nor would it be proper
for us to decide a hypothetical future request for unsealing
or to issue blanket rules that transcend the case before us.
FORBES MEDIA LLC V. UNITED STATES 29
We leave to district courts in the first instance the
decision of whether to impose reporting requirements akin
to those that the Northern District of California adopted. The
government—which at oral argument expressed some
receptivity to the Northern District’s approach—may wish
to consider adopting its own policies in this area. And in all
events, we leave to future courts resolution of the question
whether any or all portions of AWA technical assistance
proceeding materials fall within a presumptive right of
public access once an arrest warrant is executed and a
criminal investigation concluded.
III
We briefly address post-argument developments
involving related litigation. As we explained above, in the
inadvertently unsealed S.D. Cal. application that Brewster
located, the government referenced prior AWA orders to
Sabre issued not only in the Northern District of California
and Western District of Washington, but also in the Eastern
District of Virginia and Western District of Pennsylvania.
Petitioners sought unsealing in those other courts, too.
In the Eastern District of Virginia case, United States v.
Burkov, No. 1:15-cr-00245 (E.D. Va. Apr. 20, 2022), Dkt.
86, the government assented to the disclosure of certain
AWA materials because there, the suspect had been
apprehended, the investigation completed, and the criminal
proceedings closed. In Burkov, the government stated that
although it “does not believe that the entry of a final
judgment and the defendant’s release from imprisonment
will always be dispositive as to whether unsealing AWA
materials is appropriate,” “on the facts of this case, the
government believes that sealing is no longer necessary.”
Although petitioners try to fashion this into a grand
30 FORBES MEDIA LLC V. UNITED STATES
concession, we think the government’s position in Burkov
proves little here other than that the considerations may well
be different when the suspect is arrested and the
investigation complete. That is the same question we
reserved above.
The Western District of Pennsylvania case, like the cases
before us, involved AWA technical assistance proceedings
involving Sabre relating to an unexecuted arrest warrant, in
which the criminal investigation was still ongoing. See In re
Application of Forbes Media LLC, 2022 WL 17369017, at
*9 (W.D. Pa. Dec. 2, 2022). Brewster and Forbes moved to
unseal the same types of AWA materials they sought here.
On December 2, 2022, in an unpublished decision, the
Western District of Pennsylvania granted petitioners’
request in relevant part.
Without reaching the First Amendment question, the
court found that the materials should be disclosed under the
common law right of access. Id. at *1 & n.2. In particular,
the Western District of Pennsylvania analyzed the
documents by formal category and concluded that they fell
within the common law right, resulting in a presumption of
access that the government had not overcome. Id. at *4–10.
The court acknowledged that courts in the Northern District
of California and Western District of Washington—in the
cases before us—had ruled differently. Id. at *3. But the
Western District of Pennsylvania perceived a difference
between Third Circuit and Ninth Circuit law, asserting that
the Third Circuit had yet to hold, as we held in Times Mirror,
that pre-indictment search warrant materials should be
treated like grand jury materials. Id. at *3 & n.4. The
Western District of Pennsylvania thus ordered the release of
the requested AWA materials, with redactions to conceal the
FORBES MEDIA LLC V. UNITED STATES 31
identity of the suspect and the particulars of the criminal
investigation. Id. at *1, 10.
After it ruled on the specific redactions, the court in the
Western District of Pennsylvania gave the government
fourteen days to seek a stay of its ruling in either the district
court or the Third Circuit. Id. at *11. The government did
not seek a stay. The redacted AWA materials were then
released. They were filed publicly with our court in late
December 2022, after oral argument in this case.
Without broaching the issue of whether there is any
material difference between Third and Ninth Circuit law
governing the common law right of access, it is sufficient to
note that, as our analysis above would indicate, we
respectfully disagree with the Western District of
Pennsylvania’s decision. That court improperly focused on
the generic categories of documents requested, without fully
considering the nature of the AWA technical assistance
proceedings in which those documents were generated.
Such an approach is not consistent with our precedents or
with the basic principles underlying this area of law.
In post-argument letters, petitioners have suggested that
because it failed to seek a stay of the Western District of
Pennsylvania ruling, the government should be treated as
having acquiesced in the release of AWA materials in the
parallel cases before us involving the same petitioners, at
least to the extent of the materials ordered released in
Pennsylvania. We express no views on whether doctrines
such as waiver or forfeiture could apply in these
circumstances based on the government’s decision not to
seek a stay of the Western District of Pennsylvania ruling.
We have only a limited record concerning the proceedings
in the Western District of Pennsylvania, and the district
32 FORBES MEDIA LLC V. UNITED STATES
courts in the two cases before us have not had opportunity to
consider this issue, which arose some months after this
appeal was argued. Petitioners remain free to attempt to
raise this issue in the district courts, as appropriate. See Fed.
R. Civ. P. 60. But recent developments in the Western
District of Pennsylvania do not undermine the district courts’
decisions here based on the record that was before them, or
our legal determination on the qualified right of access
questions.
Under these circumstances, and for the reasons we have
given, the judgments of the district courts are
AFFIRMED.