In re Jason Leopold to Unseal Certain Elec. Surveillance Applications

• Decision Date: 26 February 2018
• Docket Number: Misc. Action No. 13–mc–00712
• Citation: 300 F.Supp.3d 61
• Parties: In the MATTER OF the Application of Jason LEOPOLD TO UNSEAL CERTAIN ELECTRONIC SURVEILLANCE APPLICATIONS AND ORDERS.
• Court: U.S. District Court — District of Columbia

300 F.Supp.3d 61

In the MATTER OF the Application of Jason LEOPOLD TO UNSEAL CERTAIN ELECTRONIC SURVEILLANCE APPLICATIONS AND ORDERS.

Misc. Action No. 13–mc–00712

United States District Court, District of Columbia.

Signed February 26, 2018

Jeffrey Louis Light, Law Offices of Jeffrey Light, KatieLynn Boyd Townsend, Reporters Committee for Freedom of the Press, Washington, DC, for Jason Leopold and Reporters Committee for Freedom of the Press.

Leslie Ann Gerardo, United States Attorney's Office, Margaret J. Chriss, Pamela Stever Satterfield, U.S. Attorney's Office, Special Proceedings Section, Washington, DC, for United States of America.

MEMORANDUM OPINION

BERYL A. HOWELL, Chief Judge

Invoking both the First Amendment and common law rights of access to judicial records, Jason Leopold, an investigative journalist, and the Reporters Committee for Freedom of the Press initially petitioned the Court to unseal almost twenty years of sealed government applications, and related orders, to obtain information about, and the contents of, electronic communications in criminal investigations now closed. See generally Pet. Unseal Records ("Pet."), ECF No. 1; Appl. to Unseal and for Other Appropriate Relief ("Intervenor's Pet."), ECF No. 18. These petitions commenced a constructive effort among the petitioners, U.S. Attorney's Office for the District of Columbia ("USAO"), and Clerk of this Court to consider mechanisms for allowing greater transparency in the judicial review process for such applications and orders, while maintaining the secrecy of information implicating both legitimate individual privacy and law enforcement interests, and navigating the practical difficulties posed by evolving internal technological tools and administrative practices within the USAO and the Clerk's Office for processing and docketing these records. The parties' commendable willingness to work together, in good faith, to identify areas of common ground and compromise has substantially narrowed the legal dispute and resulted in a largely collaborative rather than an acrimonious litigation. For the reasons set out below, the petitions are granted in part and denied in part.

I. BACKGROUND

This is not the only court with a significant volume of sealed government surveillance records on secret dockets that remain inaccessible to the public.¹ The progress of this litigation is outlined in some detail because the lessons learned and issues confronted inform the relief available, and may be instructive to other courts confronting similar issues.

Jason Leopold, a journalist currently employed by BuzzFeed News, filed a petition in July 2013 to unseal government applications and related orders for the following types of statutorily authorized surveillance: "pen registers, trap and trace devices [collectively "PR/TT devices"], tracking devices, cell site location, stored email, telephone logs, and customer account records from electronic service providers, except for those which relate to an ongoing investigation." Pet. at 1; see also Gov't's Resp. to Pet. ("Gov't's Resp.") at 1, ECF No. 10.² These records, along with the docket numbers assigned by the Clerk's Office and docket sheets identifying all documents filed on each docket for such matters, typically remain under seal indefinitely. In view of this fact, Leopold also sought a list of all docket numbers, in closed investigations, associated with government applications and orders relating to PR/TT devices and the compelled disclosure of electronically stored communications and records, pursuant to the Stored Communications Act, 18 U.S.C. § 2701 et seq. ("SCA"). Pet. at 4. In addition to this retrospective relief in the form of unsealing docket numbers and PR/TT and SCA materials in closed criminal investigations, Leopold requested prospective relief in the form of a presumptive 180–day expiration date for all sealing or non-disclosure orders for such materials, extendable for ongoing investigations or in exceptional circumstances. Id. at 5.

In response to the petition, the USAO acknowledged, in December 2013, "that applications and orders relating to electronic surveillance methods need not necessarily be permanently sealed." Gov't's Resp. at 2. Nonetheless, asserting that the requested relief was overbroad, the USAO identified several obstacles to the wholesale unsealing and disclosure that Leopold sought. Id. at 2–3. First, the USAO could not provide a complete list of docket numbers associated with all PR/TT and SCA applications and/or orders filed in this Court because other components of the U.S. Department of Justice ("DOJ"), applied for and obtained such surveillance orders, without USAO involvement. Id. at 2. Second, limiting the requested unsealing to "closed" investigations posed administrative burdens in (1) identifying the appropriate USAO personnel and law enforcement officials to verify the status of the investigation, and, (2) where an aspect of an investigation was closed, assessing whether the need for secrecy remained due to concerns over witness safety, national security, or jeopardizing ongoing investigations growing out of closed investigations. Id. at 2–3. Third, the USAO criticized the petition's suggested protocol of a presumptive 180–day expiration date for sealing and non-disclosure orders as "arbitrary on its face," as that presumptive limit gave short shrift to the interests justifying the initial sealing and unduly cabined judicial discretion, in conflict with governing statutes. Id. at 3.

While taking no position on whether the First Amendment or common law established a right of access to the materials at issue, the USAO pointed out, correctly, that "the decision whether, and if so how, to establish a protocol to identify more accurately, track, and ultimately terminate sealing orders is a matter that falls within the administrative responsibility of this Court," and offered, as an institutional litigant, to "assist the Court in whatever manner the Court might deem appropriate towards the aim of formulating appropriate guidelines" in this area. Id. at 2–3 nn.2–3.

Nothing more transpired in this matter for over two years, until the matter was reassigned to the undersigned in March 2016.³ At subsequent status hearings, Leopold's counsel clarified that the petition sought no personally identifying information concerning investigative targets, Hr'g Tr. ("May 2016 Tr.") at 9:5–25, 10:1–21 (May 4, 2016), ECF No. 20; Hr'g Tr. ("June 2016 Tr.") at 9:14–17 (June 24, 2016), ECF No. 21, and agreed, at the Court's suggestion, to limit the scope of requested relief to only those PR/TT and SCA applications filed by the USAO, June 2016 Tr. at 12:2–5, 9.

The USAO provided additional detail on the practical challenges presented by the petition, some of which, ironically, were exacerbated by the limitations agreed to by Leopold. In particular, determining whether the USAO or a different DOJ component had filed a PR/TT or SCA application would be challenging, as the USAO maintained no lists of docket numbers for PR/TT and SCA matters initiated by USAO prosecutors, and because the USAO's internal tracking system for criminal investigations did not correspond to the Miscellaneous ("MC") docket numbers assigned by the Clerk's office. June 2016 Tr. at 12:15–22.⁴ Moreover, even the USAO lacked access to the sealed MC dockets and, thus, could not determine which PR/TT and SCA applications were filed by the USAO or a different DOJ component or the status, as open or closed, of the investigations in connection with which those applications were filed. Id. at 12:23–25, 13:1–5.

While acknowledging that the petition was "quite broad," id. at 5:24, Leopold's counsel explained that the relief sought would reveal changes over time in the types of surveillance requests the government made pursuant to particular statutory authorities, as well as the government's evolving legal arguments in support of particular surveillance applications, citing, as an example, the government's argument that 18 U.S.C. § 2703(d) allowed the government to obtain historical cell cite data. May 2016 Tr. at 12:7–15; see also June 2016 Tr. at 6:2–3 (describing petition's "overall goal" as enabling the public "to understand the use of and justification for [PR/TT] and [§] 2703(d) orders."). Similarly to the USAO, Leopold expressed willingness "to work with the Court to narrow it down to the things that we're specifically interested in." June 2016 Tr. at 5:24–25, 6:1.

The Court directed the parties to propose a future course and, given the breadth of relief the petitioners sought, to refine the scope of Leopold's request to "a manageable time period where we have records that are electronic and so more easily accessible to review and to track." Id. at 18:13–15.⁵ In addition, the parties were directed to identify any "information the parties would need from the Court to help facilitate moving forward." Id. at 18:16–18. The Reporters Committee for Freedom of the Press moved to intervene soon thereafter, see Reporters Comm.'s Unopposed Mot. to Intervene ("Mot. Intervene"), ECF No. 16, which motion was granted, Minute Order, dated Aug. 18, 2016.⁶

The parties' efforts to narrow the issues then progressed in three overlapping phases: (1) the unsealing and public release by the Clerk's Office of docket numbers and limited docket information for PR/TT and certain SCA matters filed during an agreed-upon range of years; (2) the unsealing and public release by the USAO of redacted PR/TT applications and orders from a sampling of such matters filed in 2012, in order to assess both the burdens of redacting and unsealing the requested records and the value of the information yielded; and (3) the extraction by the USAO of agreed-upon categories of information from ten percent of PR/TT matters filed in 2012, and the unsealing and public release of that extracted information. Each phase is described further below.

A. The Court Unseals Docket Numbers and...