In re Granick
| Decision Date | 20 May 2019 |
| Docket Number | Case No. 16-mc-80206-PJH |
| Citation | 388 F.Supp.3d 1107 |
| Parties | IN RE Petition of Jennifer GRANICK and Riana Pfefferkorn to Unseal Technical-Assistance Orders and Materials |
| Court | U.S. District Court — Northern District of California |
Jennifer Stisa Granick, ACLU, San Francisco, CA, Riana Siobhan Pfefferkorn, Stanford Law School, Stanford, CA, for In re Petition of Jennifer Granick and Riana Pfefferkorn.
ORDER RULING ON MOTION FOR DE NOVO DETERMINATION AND DENYING PETITION
On May 8, 2019, the court held a hearing on (1) the motion of petitioners Jennifer Granick and Riana Pfefferkorn ("Petitioners") for de novo determination of dispositive matter referred to magistrate judge, pursuant to Civil L.R. 72-3, and objections to the December 18, 2018, report and recommendation ("R&R") of the magistrate judge to deny their petition to unseal technical assistance orders and materials ("Petition"); and (2) Petitioners' motion for an evidentiary hearing. Dkt. nos. 62, 63. For the reasons stated on the record and set forth below, the motion for de novo determination is GRANTED; the objections to the R&R are OVERRULED; the motion for an evidentiary hearing is DENIED; the R&R is fully adopted as correct, well-reasoned and thorough; and the disposition on the Petition recommended by the R&R is accepted by the court. Accordingly, the Petition is DENIED.
The discussion of the factual summary and procedural history of the Petition set forth in the R&R is adopted in full. Dkt. no. 58 at 1–6.
On December 18, 2018, Magistrate Judge Westmore issued an R&R recommending that the court deny the Petition to unseal technical assistance orders and materials. The Petition was reassigned to the undersigned as Chief Judge. Petitioners filed the instant motion for de novo determination ("Mot.") and administrative motion for evidentiary hearing on January 16, 2019. Dkt. no. 62, 63. The government, having entered an appearance as an interested party, timely filed its response on March 27, 2019. Dkt. no. 69 ("Opp."). Petitioners filed a reply on April 10, 2019. Dkt. no. 70 ("Reply"). Following a hearing on Petitioners' objections to the R&R and motion for de novo determination, the matter was submitted.
In addition to the docketing and sealing procedures summarized in the R&R, the court takes judicial notice of the following Clerk's Office practices and procedures for docketing surveillance applications, orders and related materials under seal in the Northern District of California, as matters that are generally known within the court's jurisdiction, pursuant to Fed. R. Evid. 201 :
1. Pursuant to the court's internal intake procedures, an application for issuance of a search or seizure warrant is opened on the court's Case Management/Electronic Case Files ("CM/ECF") docketing system as a Magistrate Judge Case designated with "mj" as the case type and case number series 70000, e.g. 3:16-mj-76543-MAG. Criminal complaints are also opened as magistrate judge cases with the MJ case designation. Upon the filing of an indictment or information, which is opened as a Criminal Case with "cr" as the case type, the MJ case number of the criminal complaint merges under the CR number of the indictment or information in the CM/ECF docketing system. There is no similar procedure for merging the MJ case numbers of search or seizure warrants with a CR case number of a subsequently filed indictment or information.
2. Pursuant to the court's internal intake procedures and practices, the following types of criminal matters are opened as Criminal Miscellaneous Cases which are assigned an "xr" case number and case number series 90000, e.g., 3:07-xr-98765-MAG:
This is not an exhaustive list of all types of Criminal Miscellaneous Cases.
3. Under current Clerk's Office docketing procedures, an application for an order authorizing surveillance is opened as an MJ or XR case only after an order granting the application is issued by a judge. Currently, there is no procedure for docketing surveillance applications that are not granted.
4. Cases involving grand jury matters are automatically sealed without a court order pursuant to Fed. R. Crim. P. 6. All other criminal matters filed under seal require a sealing order pursuant to Criminal L.R. 56-1. Cases or documents filed under seal must be approved for sealing by order of the judge, or a minute order memorializing the judge's order that specifically authorizes the case or document to be sealed.
5. Under the court's Criminal Local Rules, "the electronic filing (‘e-filing’) of the documents sought to be sealed in criminal cases is not permitted." Crim. L.R. 56-1(a). Accordingly, no .pdf files are attached to each of the entries on the sealed criminal docket. Sealed MJ and XR filings in criminal cases are maintained only in paper form until the court orders the unsealing of those filings, when they are scanned and uploaded in a .pdf format by court staff.
6. If a magistrate judge case or criminal miscellaneous case is filed under seal, the docket will contain the *SEALED* designation and will be available for internal use only. Clerk's Office staff can view the information that is manually entered on the sealed MJ or XR docket, such as the title of an application for a warrant or order. Some MJ or XR cases filed under seal have a descriptive title such as "Application for an Order Pursuant to 18 U.S.C. § 2703(d)," and some cases are simply titled "USA v. In Re;" the court's docketing procedures do not require a standard naming convention for magistrate judge cases or criminal miscellaneous cases.
7. There is no internal court docketing procedure to add a "SEALED" case flag on CM/ECF for magistrate judge cases or criminal miscellaneous cases filed under seal. Accordingly, Clerk's Office staff cannot filter an electronic search on CM/ECF that is limited to sealed MJ cases or XR cases.
8. The docket sheet for a sealed magistrate judge case or criminal miscellaneous case is not visible to the public. A public search for magistrate judge cases or criminal miscellaneous cases will result in a list of cases that includes the case numbers of sealed MJ or XR cases and designates the parties as *SEALED*, with no identifying or descriptive information.
9. Because sealed MJ and XR cases, such as search warrant or wiretap applications and supporting documents, are maintained as paper files, manual review of paper files would be required to determine what each sealed document contains, beyond the text of the docket entry that is electronically entered by Clerk's Office staff on the sealed docket in CM/ECF.
10. The court's CM/ECF system does not have a separate case flag or category to designate search warrants in docket entries for MJ cases. Accordingly, the CM/ECF system does not have the ability to filter an electronic search for MJ cases that is accurately limited to search warrants.
11. Similarly, the court's CM/ECF system does not have a separate case flag or category for XR cases to differentiate wiretaps, § 2703(d) orders, pen register/trap and trace ("PR/TT") devices, and All Writs Act materials. Accordingly, the CM/ECF system does not have the ability to filter an electronic search for XR cases that is accurately limited to a particular category of surveillance or technical assistance materials.
When a party has timely filed written objections to the proposed findings and recommendations of a magistrate judge, a district judge shall make "a de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made." 28 U.S.C. § 636(b)(1). The court "may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge," and "may also receive further evidence or recommit the matter to the magistrate judge with instructions." Id.
The R&R correctly set forth the applicable legal standards for assessing the First Amendment and common law rights of public access asserted in the Petition, which are adopted and restated below.
Under Ninth Circuit authority, "the public has no right of access to a particular proceeding without first establishing that the benefits of opening the proceedings outweigh the costs to the public." Times Mirror Co. v. United States , 873 F.2d 1210, 1213 (9th Cir. 1989). To determine whether the public has a First Amendment right of access to a judicial proceeding or documents generated from the proceeding, "[c]ourts are required to examine whether 1) historical experience counsels in favor of recognizing a qualified First Amendment right of access to the proceeding and 2) whether public access would play a ‘significant positive role in the functioning of the particular process in question.’ " Id. (quoting Press-Enterprise Co. v. Superior Court , 478 U.S. 1, 8, 106 S.Ct. 2735, 92 L.Ed.2d 1 (1986) (" Press-Enterprise II ")).
While courts must consider both "historical experience" and "logic" to determine whether the public has a First Amendment right to access to a particular proceeding, Ninth Circuit authority recognizes that "logic alone, even without experience, may be enough to establish the right." In re Copley Press, Inc. , 518 F.3d 1022, 1026 (9th Cir. 2008) (citation omitted). As construed by the panel in In re Copley Press , the "experience and logic" test ...
To continue reading
Request your trial
-
Elec. Frontier Found., Inc. v. Superior Court of San Bernardino Cnty.
...that there is no First Amendment right to search warrant materials and note that courts are split on the issue. (See In re Granick (N.D.Cal. 2019) 388 F.Supp.3d 1107, 1123 [noting that "[c]ircuit courts are split on the question whether there is a First Amendment qualified right of access t......
-
Forbes Media LLC v. United States
...evidence, coordinate their stories before testifying, or even flee the jurisdiction.” Id. Similar considerations prompted the court in In re Granick to find that the public has no First Amendment right access to AWA orders that require a third party to provide assistance “in furtherance of ......
-
In re Forbes Media LLC
... ... law presumption of access applied, the presumption had been ... overcome by the administrative burden [ 5 ] required to identify and ... potentially redact the materials sought. In re Petition ... of Jennifer Granick and Riana Pfefferkorn to Unseal ... Technical-Assistance Orders and Materials , 388 F.Supp.3d ... 1107, 112930 (N.D. Cal. 2019) ... The ... Court concludes that, under the functional test that ... articulated by the Third Circuit, the AWA materials ... ...
-
Forbes Media LLC v. United States
...third party assistance in the execution of a sealed arrest warrant. As identified by this court in the matter of In re Granick, 388 F. Supp. 3d 1107, 1129 (N.D. Cal. 2019), "There is no Ninth Circuit authority recognizing a First Amendment right to access technical assistance orders under t......