In re New York Times Co. to Unseal Wiretap

• Citation: 600 F.Supp.2d 504
• Decision Date: 19 February 2009
• Docket Number: No. M-50.,M-50.
• Parties: In the Matter of the Application of the NEW YORK TIMES COMPANY TO UNSEAL WIRETAP AND SEARCH WARRANT MATERIALS in: United States v. Brener, 08 Cr. 0533. United States v. Suwal, 08 Cr. 0497. United States v. Lewis, 08 Cr. 0433.
• Court: U.S. District Court — Southern District of New York

Page 504

600 F.Supp.2d 504

In the Matter of the Application of the NEW YORK TIMES COMPANY TO UNSEAL WIRETAP AND SEARCH WARRANT MATERIALS in:

United States v. Brener, 08 Cr. 0533.

United States v. Suwal, 08 Cr. 0497.

United States v. Lewis, 08 Cr. 0433.

No. M-50.

United States District Court, S.D. New York.

February 19, 2009.

Order Denying Motion to Amend March 19, 2009.

David E. McCraw, Vice President & Assistant General, The New York Times' Company, New York, NY, for the New York Times Company.

Daniel L. Stein, Deputy United States Attorney, U.S. Attorney's Office, New York, NY, for the Government.

Stuart E. Abrams, Frankel & Abrams, New York, NY, for John Doe.

OPINION AND ORDER

JED S. RAKOFF, District Judge.

It is largely left to the judiciary to find the right balance between, on the one hand, the public's right to know what the government and the courts are up to and, on the other hand, the government's right to protect the confidentiality of ongoing criminal investigations and the rights of individual citizens to maintain their privacy. But reasonable compromises and concessions by the interested parties can, as here, assist the Court in achieving a balance that permits substantial disclosure while minimizing its intrusiveness.

Here, the New York Times Company (the "Times") seeks the unsealing and production of wiretap applications and related materials associated with the Government's investigation of the Emperor's Club V.I.P. ("Emperor's Club"), a prostitution and money-laundering ring whose bestknown client was former New York Governor Eliot Spitzer. By way of background, in early January of 2008 the Government applied to the District Court for the Southern District of New York for authorization to intercept the incoming and outgoing calls on a cellular telephone that there was good reason to believe was being used to further the business of a prostitution ring. On January 8, 2008, a judge of this Court authorized this wiretap for a 30-day period, and, on February 11, 2008, the authorization was renewed for an additional 30 days. Declaration of Daniel L. Stein dated January 14, 2009 ("Stein Decl.") ¶ 2(a). Meanwhile, on January 23, 2008, the Government obtained judicial authorization to wiretap for 30 days a second cellular telephone also involved in the business of the ring, and this authorization was renewed for another 30 days on February 21, 2008. Id. ¶ 2(b). In addition, on January 25, 2008, the FBI obtained a search warrant for an email account with the address "emperorsclubvipny@yahoo.com." Id. ¶ 5.

In the case of the two wiretaps, the initial applications were supported by affidavits setting forth the evidence that established the prerequisites for the taps, and the requests for renewal were supported by interim reports detailing information that had been learned thus far and the reasons for further monitoring. The search warrant application was supported by an affidavit containing, among other things, summaries of communications obtained from the wiretaps. All of these materials along with the authorization orders and the search warrant, were placed under seal by the issuing judges. Indeed, in the case of the wiretap applications, the judges were required to do so by 18 U.S.C. § 2518(8)(b) of Title III of the Omnibus Crime Control and Safe Streets Act of 1968, 18 U.S.C. §§ 2510-2522 ("Title III"), the statute that governs the interception of wire and electronic communications by law enforcement agents.

On March 6, 2008, the Government, as a result of its investigation of the Emperor's Club, brought criminal charges—specifically, conspiracy and money laundering charges—against four individuals: Mark Brener, Cecil Suwal, Temeka Rachelle Lewis, and Tanya Hollander. All of these individuals—the apparent operators of the ring—subsequently pled guilty. Shortly after the Government filed the charges, it became publicly known that Eliot Spitzer was a client of the Emperor's Club. See, e.g., Danny Hakim and William K. Rashbaum, Spitzer Is Linked to Prostitution Ring, N.Y. Times, March 10, 2008, available at http://www.nytimes.com/2008/03/10/nyregion/locnd-spitzer.html?scp=2&sq=spitzer&st=cse. In the days that followed, Spitzer resigned his post as Governor of New York. Ultimately, no criminal charges were brought against Spitzer or against any other individual beyond the four persons initially charged. See Stein Decl. ¶ 4.

In late December 2008, the New York Times brought the instant motion to intervene in the above-referenced criminal cases and to unseal materials associated with the wiretap and search warrant applications made in the course of the Emperor's Club investigation. After the New York Times filed its motion, the Government gave notice of the motion to as many of the 67 individuals named in these materials as they could locate, most of whom were apparent customers of the ring. On January 14, 2009, one "John Doe" moved to intervene in order to oppose the Times' application. Eight other individuals contacted counsel for the Times and for the Government to express concerns about the prospect of unsealing these materials. They chose not to seek to intervene, however, after the Times and the Government entered into a stipulation pursuant to which the Government agreed to redact the names and identifying information of those individuals and the Times agreed not to seek any such information.

Because a motion to intervene is the procedurally proper device for asserting a right of access in a criminal proceeding, see, e.g., United States v. King, 140 F.3d 76, 77-78 (2d Cir.1998), both the Times' and John Doe's motions to intervene are hereby granted.

As for the motion to unseal, while the motion was being briefed the Government agreed to release to the Times a redacted version of the affidavit supporting the FBI's application for the search warrant for the "emperorsclubvipny@yahoo.com" email account, and the Times accepted the redacted version in satisfaction of the portion of its motion as sought that affidavit. Times Reply Mem. at 2. What remained, then, was the motion to unseal the materials relating to the two wiretaps; but at oral argument counsel for the Times confirmed its agreement to permit the Government to redact the names and identifying information of all customers whose names appear in the materials (presumably, however, not including Spitzer, who had previously been publicly identified)— not just those who had contacted the Government and were covered by the stipulation. Transcript of oral argument on January 27, 2009 ("Tr.") at 5. The scope of the motion was therefore limited to seeking the release of the wiretap materials so redacted. The Court now grants that motion.

Initially, three basic principles inform that determination. First, all the sought materials, although docketed under seal, are "judicial records." In United States v. Amodeo, 44 F.3d 141, 145 (2d Cir.1995) ("Amodeo I"), the Second Circuit defined a "judicial document" as a document that is filed with the court and is "relevant to the performance of the judicial function and useful in the judicial process." Although the question whether wiretap materials such as those at issue here are "judicial documents" has not previously been decided, such documents are plainly "relevant to the performance of the judicial function" in that courts must necessarily review them in order to perform their Congressionally-appointed task of approving or disapproving wiretap applications and their extensions.

Second, since the materials here sought are judicial documents, they are presumptively subject to public access. The press and public have long enjoyed both a common law and a First Amendment right of access to judicial processes and records. As the Supreme Court noted in Nixon v. Warner Communications, Inc., 435 U.S. 589, 597, 98 S.Ct. 1306, 55 L.Ed.2d 570 (1978), "the courts of this country recognize a general right to inspect and copy public records and documents, including judicial records and documents." Such a right furthers "the citizen's desire to keep a watchful eye on the workings of public agencies," id. at 598, 98 S.Ct. 1306, often assisted by "a newspaper's intention to publish information concerning the operation of government," id. The First Amendment, moreover, guarantees public access not only to criminal trials but to such pretrial proceedings as suppression hearings (where wiretaps are often unsealed and challenged). See In re New York Times, 828 F.2d 110, 113-14 (2d Cir.1987). Because of the importance of such public monitoring of the courts, the Second Circuit has held that there is a presumption in favor of disclosure, United States v. Amodeo, 71 F.3d 1044, 1048 (2d Cir. 1995) ("Amodeo II"), which is at its strongest when, as here, the documents are directly relevant to the exercise of a court's Article III judicial power, id. at 1049.

Third, once a district court has determined the weight to be given to the presumption, the court then balances this against the factors weighing in favor of maintaining confidentiality, such as the government's law enforcement interests and the privacy interests of affected parties. Id. at 1050. The decision over whether to grant access is "left to the sound discretion of the trial court." Nixon, 435 U.S. at 599, 98 S.Ct. 1306. See also Amodeo I, 44 F.3d at 146.

Although the foregoing principles have constitutional underpinnings, their application in this case is arguably impacted by the specific provisions of Title III governing disclosures, provisions that were designed both to protect the integrity of ongoing Government investigations and to protect the privacy of people whose phone calls might be tapped. See In re Kansas City Star, 666 F.2d 1168, 1175 (8th Cir. 1981); In re New York Times, 828 F.2d at 115. The provision of Title III of relevance here states that

[a]pplications made and orders granted under this chapter shall be sealed by the judge....