Application of Newsday, Inc.
| Decision Date | 13 June 1988 |
| Citation | 895 F.2d 74 |
| Parties | 17 Media L. Rep. 1385 In re Application of NEWSDAY, INC. In re Application for LIMITED UNSEALING OF AFFIDAVIT SUPPORTING SEARCH WARRANT DATED |
| Court | U.S. Court of Appeals — Second Circuit |
Michael J. Dell, New York City (Gary P. Naftalis and Suzanne L. Telsey, Kramer Levin, Nessen, Kamin & Frankel, of counsel), for appellant Charles F. Gardner.
Robert Lloyd Raskopf, New York City (Harry T. Walters and Paul S. Grobman, Townley & Updike and Nancy Richman, Times Mirror Co., of counsel), for appellee Newsday.
Maury S. Epner, Washington, D.C. (Henry E. Hudson and Joseph J. Aronica, Dept. of Justice, of counsel), for amicus curiae the U.S.
Before OAKES, PIERCE, and RUBIN, * Circuit Judges.
Newsday, a newspaper, sought access to a search-warrant application containing information obtained by a wiretap. The application had been sealed by the district court at the request of the government. Following a guilty plea by the subject of the wiretap, the government withdrew its earlier objection to unsealing the application, and the district court released a redacted copy of the warrant materials. The subject of the wiretap appeals from this decision contending that the provisions of the federal wiretap statute forbid public disclosure in such a manner of information obtained by a wiretap. Without deciding whether, as contended by Newsday, the press has a constitutional right of access to documents contained in search warrant applications, we hold that the district court properly balanced the common law right of access to judicial records with the defendant's privacy rights, and affirm its release of a redacted copy of the warrant application.
Yesterday's front page news leads to today's lawsuits. The Federal Bureau of Investigation launched an investigation of possible kickbacks to Defense Department employees and other unlawful procedures in military procurement. The FBI obtained court authorization to tap the phone of Charles Gardner, a former employee of the Unisys Corporation, who was a key figure in the investigation. An FBI agent then used information obtained by the wiretap in an affidavit supporting an application for a search warrant of Gardner's home. The warrant was signed by a judge of the Eastern District of New York and executed the next day. A month later, in response to a motion by Newsday to unseal the entire affidavit, the judge heavily redacted the affidavit and unsealed a small part of it, disclosing only a few paragraphs describing Gardner's house.
The government later withdrew its objection to unsealing specified portions of the affidavit, so the district court ordered the release of those portions of the affidavit to Gardner and Dennis Mitchell, a business associate of Gardner and another subject of the investigation. Neither Gardner nor Mitchell was ever charged with any crime in the Eastern District of New York, but, later, after both had pled guilty to criminal informations filed in the Eastern District of Virginia, the government dropped its objection to release of the affidavit in its entirety. Gardner, however, continued to object to public disclosure. Thereafter, the district court rendered an oral opinion, granting Newsday's application to unseal both the search warrant and the search-warrant affidavit subject to redaction of extraneous material and references to third parties not subject to criminal investigation. On Gardner's motion, it stayed this order pending expedited appeal to this court.
Relying on Press-Enterprise Co. v. Superior Court, 1 the district court found that there was a qualified constitutional right of access to the warrant application, stemming from (1) a tradition of accessibility to such materials by the press and public, and (2) the significant role in the functioning of the search and seizure processes that such access would play. 2 Noting that a statute should not be construed so as to conflict with a constitutional right, the court held that Title III of the Omnibus Crime Control and Safe Streets Act of 1968 3 did not bar release of the intercepted communications. The court further held that it was required to balance the qualified right of access against Gardner's and Mitchell's privacy rights. Because of the legitimate public interest in the case and the fact that the defendants' privacy interests had been diminished by their guilty pleas and by the mundane business nature of the recorded conversations, the court ordered the application to be unsealed, redacting only those portions of the affidavit that gave the names of individuals or corporations that had not been indicted or otherwise disclosed.
Gardner argues that Title III forbids the disclosure of wiretap information used in a search warrant application, and that no qualified right of access exists. Since Title III is comprehensive, and was enacted to address constitutional concerns over the intrusiveness of wiretapping, 4 Gardner argues further that any qualified right of access that may exist is overridden in this case by his privacy rights. The government now takes the position that Title III does not forbid disclosure and that the district court's order should be affirmed. Newsday also does not appeal the district court's order.
Title III of the Omnibus Crime Control and Safe Streets Act of 1968 creates a comprehensive scheme limiting the use of various forms of electronic surveillance, providing under what circumstances electronic surveillance may be employed, and controlling the later use of information obtained by such means. "[P]rotection of privacy was an overriding congressional concern" in framing the statute, 5 and Congress sought to strike an acceptable balance between the privacy rights of individuals and the legitimate needs of law enforcement. 6 The statute does not, however, address the issue of public access to intercepted communications when those communications become part of a public document after having been used by the government in the course of its law enforcement activities.
Section 2511 of Title III makes it a crime intentionally to disclose communications in violation of Title III. 7 Section 2515 creates a separate barrier by forbidding the use of intercepted communications in any judicial proceeding except as authorized by the statute. 8 Section 2517 describes three situations in which intercepted communications may lawfully be used. Subsection 1 permits "any investigative or law enforcement officer" who has lawfully obtained knowledge of the contents of any intercepted communication to "disclose such contents to another investigative or law enforcement officer to the extent that such disclosure is appropriate" in the performance of their official duties. 9 Subsection 2 authorizes investigative or law enforcement personnel who have lawfully obtained knowledge of any intercepted communications "to use such contents to the extent such use is appropriate to the proper performance of [their] official duties." 10 Subsection 3 permits "any person " who has received "any information concerning" intercepted communications to "disclose the contents of that communication or such derivative evidence while giving testimony ... in any proceeding held under the authority of the United States or of any State or any political subdivision thereof." 11
Aside from these permitted uses, Title III requires sealing of intercepted communications and grants certain procedural rights to any party whose communications were intercepted. Section 2518(8)(a) provides in part that recordings of intercepted communications "shall be made available to the judge issuing [the Title III order] and sealed under his directions." 12 It also permits duplicate recordings of the intercepted communications to be made for use or disclosure pursuant to the provisions of Sec. 2517. 13 Section 2518(9) provides that, at least ten days before evidence relating to any intercepted communication is received in evidence "or otherwise disclosed in any trial, hearing, or other proceeding in a Federal or State court," each party shall be provided with a copy of the order under which the interception was carried out, unless the judge finds that such advance notice was not possible and that prejudice will not result. 14 Finally, Sec. 2518(10) provides in part that any person who was a party to an intercepted communication may move to suppress the contents of such communication on the grounds that it was intercepted unlawfully, or pursuant to an order insufficient on its face, or not in conformity with a lawful order. 15
Gardner argues that "disclosure" by testimony in court pursuant to Sec. 2517(3) is the exclusive means by which intercepted communications may be released to the public, relying in part on the difference in meaning between the words "use" and "disclose" employed in Sec. 2517(2) and (3), and the procedural safeguards provided in Sec. 2518 for disclosure pursuant to Sec. 2517(3).
Gardner cites a Seventh Circuit case, United States v. Dorfman, 16 which held that Sec. 2517(3) was the exclusive means of public access to exhibits containing wiretap materials submitted by the government in opposition to a motion to suppress the fruits of wiretapping at defendants' trial. 17 Beginning with the premise, "Title III implies that what is not permitted is forbidden," 18 the Dorfman court concluded:
The draftsmen [of Title III] must have known that most criminal proceedings are conducted in public, so probably they expected (if they thought about the matter) that most testimony authorized by section 2517(3) would end up in the public domain. But we find no evidence that they wanted to create a right of public access. 19
We agree that Title III generates no right of access, but it is a...
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