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
This is not the only court with a significant volume of sealed government surveillance records on secret dockets that remain inaccessible to the public.
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.
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
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.
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.
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.
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.
As summarized in a series of joint status reports, the parties agreed upon the steps required to begin identifying the PR/TT and SCA applications and orders at issue. While declining to limit the scope of their requests for ultimate relief, the petitioners agreed to limit the unsealing immediately sought to PR/TT matters that the USAO initiated in 2012 "[f]or purposes of this stage of the litigation." First Joint Status Report ("1
The USAO noted that this process
Id. ¶ 5. Indeed, determining whether an investigation is pending, closed, or related to a pending investigation may itself "require consultation and coordination with various internal databases and other jurisdictions." Id. Despite the "problem" posed in verifying the status of an investigation, the USAO acknowledged that most PR/TT applications filed in 2012 likely related to investigations that were closed. Hr'g Tr. ("Sept. 2016 Tr.") at 5:20-22, 8:22 (Sept. 16, 2016), ECF No. 23. Recognizing that "it is impossible to determine how long this process could take with respect to all [PR/TT] pleadings for 2012," the parties agreed that the USAO would initially produce a small number of redacted 2012 PR/TT applications and orders. 1
The Court agreed to the parties' request to unseal MC docket numbers for PR/TT
Shortly thereafter, the Court provided Notice to the parties of the unsealing of a 53-page list of 235 matter numbers, most of which were MC numbers, for all PR/TT matters that the USAO initiated in 2012, along with limited docket information (i.e., the matter caption, dates of the application's filing and entry onto the docket, the application's caption, and the application's CM/ECF case type). See Order and Notice to the Parties, Attach. A, List of Misc. Case Numbers for PR/TT Applications and Orders Filed in 2012 by USAO ("2012 PR/TT List"), ECF No. 22-1.
The parties subsequently jointly proposed, as an "initial step in the process for addressing sealed original [PR/TT] matters filed by the USAO in other years," that the Clerk's Office compile lists of all PR/TT matters that the USAO filed in the years 2008 through 2011, and 2013 through 2016. Third Joint Status Report ("3
The parties also requested access, similar to that for PR/TT matters, to lists of sealed matters regarding USAO applications for disclosure of electronic communications records, pursuant to 18 U.S.C. § 2703(d), for the years 2008 through 2016. Sixth Joint Status Report ("6
In response to the Court's practical concerns over compiling lists of § 2703(d) matters, the parties proposed, through a joint status report, that the Clerk's Office conduct targeted searches that "would alleviate any need ... to manually open and review dockets." Seventh Joint Status Report (7
The Court provided the parties with the total number of matters responsive to the above-described searches, with the significant caveats that such numbers could be under-inclusive by not capturing all SCA matters initiated by the USAO and other DOJ components, and may also reflect double-counting of § 2703(d) matters "since applications for § 2703(d) orders filed in more than one year in the same Miscellaneous matter will result in the same matter being counted in more than one year." See Notice to the Parties ("Section 2703(d) Notice") at 2, ECF No. 43; Notice to the Parties ("SCA Warrant Notice") at 2, ECF No. 45. Specifically, the number of § 2703(d) matters responsive to the searches and filed in the following years were: 2008 - 80; 2009 - 55; 2010 - 136; 2011 - 90; 2012 - 64; 2013 - 160; 2014 - 334; 2015 - 581; 2016 - 1,136. Section 2703(d) Notice.
Following the Court's unsealing and release of the 2012 PR/TT List, the USAO reviewed the list to match each docket number with the USAO's internal investigative file, using the target telephone or account number, and then identified the AUSA assigned to the matter, a process that took several days. Gov't Status Report ¶ 2, ECF No. 24. Upon completing that review, the USAO selected a representative sampling of ten PR/TT matters assigned to AUSAs still employed by the USAO, and contacted each AUSA to determine whether, in the AUSA's view, a PR/TT matter could be unsealed, in part or whole. Id. In determining whether a PR/TT matter could be unsealed, "the AUSAs first retrieved and reviewed paper and/or electronic files, and, in some instances, consulted with the law enforcement agents and/or their supervisors." Id. The USAO ultimately determined that four of the ten sample PR/TT matters could be unsealed with redactions, but lacked sufficient information to make an informed determination on unsealing as to the other six matters. Id. The USAO then moved to unseal in part those four matters for the limited purpose of obtaining certified copies of all documents filed in each docket, which motions the Court granted. Id. ¶ 3; Minute Order, dated October 31, 2016 (granting USAO motions to unseal in part 12-MC-12, 12-MC-129, 12-MC-227, and 12-MC-397 for limited purpose). The
The USAO then moved to unseal in part the four PR/TT matters, see Second Joint Status Report ¶ 2, ECF No 25, with uniform redaction of personally identifiable information, such as names, addresses, and telephone or account numbers, as well as details about the underlying criminal investigations, see 3
The redacted PR/TT materials, stripped of identifying information about the individual or underlying criminal activity under investigation, revealed that the USAO's PR/TT applications largely used the same language to describe (1) the service provider from whom the USAO sought to compel production, (2) the scope of legal authority sought, (3) the need for such authority, (4) the steps the USAO would take in exercising that authority, including technical assistance to be required of the service provider, and (5) a request for sealing. See generally id. The parties expressed disagreement as to the significance of the information that the sample PR/TT matter materials revealed. The USAO described the materials as "substantially similar and reveal[ing] largely boilerplate information," and argued that any additional information that unsealing all of the remaining 2012 PR/TT matters might yield would have little value to the public relative to the significant "expendi[ture of] judicial and prosecutorial resources" that such broad unsealing would entail. 3
The petitioners, meanwhile, continued to insist that all PR/TT materials in closed investigations filed by the USAO be unsealed, subject to categorical redaction of personal or criminal investigation identifying information, "on a mutually agreeable schedule." Id. ¶ 8.
At a status conference, in December 2016, to address the apparent impasse between the parties regarding the scope of unsealing records on the 2012 PR/TT List, the USAO described several practical challenges associated with the unsealing and redaction process used with respect to the four sample PR/TT matters. Dec. 2016 Tr. at 11:15-25, 12:1-5. The USAO explained that roughly half of the AUSAs who had filed particular PR/TT applications in 2012 no longer worked at the USAO, and that those AUSAs still employed had difficulty matching PR/TT applications with particular docket numbers, given that the USAO's internal tracking system organizes files using internal reference numbers different from the docket number assigned by the Clerk's Office to a particular matter. Id. at 11:15-24. The USAO represented that it was "rethinking" how it maintains its own files to facilitate more easily the matching of Miscellaneous matter numbers to the internal USAO investigative file, but that "[w]e're not there yet." Id. at 12:3, 11.
In response to these practical concerns about the "painstaking" unsealing and redaction process the USAO had used with respect to the four sample 2012 PR/TT matters, the Court suggested that the USAO use an "extract[ion]" process as a "simple[r] ... alternative" going forward. Id. Under this approach, the parties would identify particular categories of information contained in PR/TT materials that the USAO would extract and provide to the petitioners. Id. Extracting information from PR/TT materials not only would consume less of the USAO's time than an unsealing and redaction process, but would minimize the possibility of inadvertent disclosure of information properly kept under seal, such as personally identifying information. Id. at 24:1-7. The parties agreed in principle to consider and confer about such an extraction process. Id. at 37:23-25, 38:1-7. In response to the USAO's concern about accessing PR/TT materials electronically, the Court agreed to allow the USAO to access such sealed materials electronically. Id. at 33:22-25, 34:1-11. In addition, the Court proposed that the petitioners limit the scope of their request for unsealing and disclosure to materials that the USAO had filed electronically through CM/ECF, and urged the parties to confer as to the scope of potential prospective relief. Id. at 33:22-25, 34:1-17, 35:15-18, 21-22, 25, 36:1.
The parties did not agree, however, on two issues: first, they failed to agree on the categories of information the USAO would extract, but pledged to "continue to discuss and attempt to reach an agreement on what categories of information can be extracted," and, second, they disagreed on whether the USAO would extract information from a ten percent sample or from all PR/TT matters for each year. Id. ¶¶ 5, 6.
The parties soon reached a general agreement that the USAO would extract fifteen specific categories of information from some or all of the sealed PR/TT dockets: (1) Case Number, (2) Docket Number, (3) Date Executed, (4) Date Docketed, (5) Type (original or extension application), (6) Order Accompanied By Opinion (yes, no, or not applicable), (7) Number of Pages, (8) Signed By (AUSA or Magistrate Judge name), (9) Device Type, (10) Statutory Violation(s), (11) Agency, (12) Service Provider, (13) Number of Target Email Addresses/Phone Numbers/Addresses, Etc., (14) Other Statutory Authority, And If So, What (e.g., Section 2703(d)), and (15) Other Requests, And If So, For What (e.g., Cell Site Data) (collectively "extracted information"). Fifth Joint Status Report ("5
The parties' three disagreements were resolved through Court rulings the following week. Specifically, the Court ruled that the USAO was not required to: (1) extract the names of AUSAs who had initiated particular PR/TT applications, Hr'g Tr. ("Feb. 2017 Tr.") at 21:24-25, 28:7-20,
The USAO completed the extraction process and provided the petitioners an extraction chart for ten percent of PR/TT matters filed by the USAO in 2012, for a total of 24 PR/TT matters. 6
Due to the petitioners' objection to moving forward with the extraction process from only a sample of ten percent from each list, the cooperative review and release of additional information from the sealed records at issue came to a screeching halt. The parties instead requested a briefing schedule to address "whether the common law and/or U.S. Constitution provide the public and, thus, petitioners, a right of access to the records from [PR/TT] matters that their respective Petitions seek to unseal." Id. ¶ 19.
Briefing on these legal issues is now complete, and the petitioners' requests are ripe for review.
"The right of public access is a fundamental element of the rule of law, important to maintaining the integrity and legitimacy of an independent Judicial Branch." Metlife, Inc. v. Fin. Stability Oversight Council, 865 F.3d 661, 663 (D.C. Cir. 2017). "[D]istrust for secret trials has been variously ascribed to the notorious use of this practice by the Spanish Inquisition, to the excesses of the English Court of Star Chamber, and to the French monarchy's abuse of the lettre de cachet." In re Oliver, 333 U.S. 257, 268-69, 68 S.Ct. 499, 92 S.Ct. 682 (1948) (footnotes omitted). James Madison warned that "[a] popular
"`The public right of access [thus] is undisputed in both its importance and its historical pedigree." United States v. El-Sayegh, 131 F.3d 158, 161 (D.C. Cir. 1997). "Public access serves to promote trustworthiness of the judicial process, to curb judicial abuses, and to provide the public with a more complete understanding of the judicial system, including a better perception of fairness." Doe v. Pub. Citizen, 749 F.3d 246, 266 (4th Cir. 2014) (quoting Littlejohn v. Bic Corp., 851 F.2d 673, 682 (3d Cir. 1988)). Unlike "[t]he political branches of government," which "claim legitimacy by election, [a] judge[']s" legitimacy derives solely "by reason." Hicklin Eng'g, L.C. v. Bartell, 439 F.3d 346, 348 (7th Cir. 2006). "Any step that withdraws an element of the judicial process from public view makes the ensuing decision look more like a fiat and requires rigorous justification." Id. "Although the right [of public access] is not absolute, there is a strong presumption in its favor, which courts must weigh against any competing interests." Metlife, Inc., 865 F.3d at 663.
"The right of public access" to judicial proceedings and records "springs from [both] the First Amendment and the common-law tradition" that such proceedings and records "are presumptively open to public scrutiny." Doe, 749 F.3d at 265; see In re U.S. for an Order of Nondisclosure Pursuant to 18 U.S.C. § 2705(b) for Grand Jury Subpoena # GJ2014031422765, 41 F.Supp.3d 1, 7 (D.D.C. 2014) ("The First Amendment or the common law provides the legal basis for the public's right of access to court records, depending on the particular court records at issue."). "[T]he right of public access, whether arising under the First Amendment or the common law, `may be abrogated only in unusual circumstances.'" Doe, 749 F.3d at 266 (quoting Stone v. Univ. of Md. Med. Sys. Corp., 855 F.2d 178, 182 (4th Cir. 1988)); cf. EEOC v. Nat'l Children's Ctr., Inc., 98 F.3d 1406, 1409 (D.C. Cir. 1996) ("[T]he starting point in considering a motion to seal court records is a strong presumption in favor of public access to judicial proceedings." (internal quotation marks omitted)). Different analytical frameworks apply to claimed rights of access established by the First Amendment and the common law, respectively. Those legal frameworks are discussed first, followed by a brief examination of the statutes authorizing the government surveillance applications and orders at issue, and then an analysis of the petitioners' requested relief, both prospectively and retrospectively.
Courts utilize a two-step framework to assess the validity of a claimed First Amendment right of access. See Press-Enter. Co. v. Superior Court of Cal. for Riverside Cty. ("Press-Enter. II"), 478 U.S. 1, 8-9, 106 S.Ct. 2735, 92 L.Ed.2d 1 (1986). The inquiry's first step, sometimes called the "experience and logic" test, is to determine whether a qualified right of access exists. Id. at 9, 106 S.Ct. 2735. "The public possesses a qualified First Amendment right of access to judicial proceedings where (i) there is an `unbroken, uncontradicted
The inquiry's second step is to determine whether an "overriding interest based on findings that closure is essential to preserve higher values and is narrowly tailored to serve that interest" nonetheless trumps any qualified right of access that attaches. Press-Enter. II, 478 U.S. at 9, 106 S.Ct. 2735 (quoting Press-Enter. Co. v. Superior Court of Cal. ("Press-Enter. I"), 464 U.S. 501, 510, 104 S.Ct. 819, 78 L.Ed.2d 629 (1984)). "Where there is a First Amendment right of access to a judicial proceeding, the `presumption of access can be overridden only if (1) closure serves a compelling interest; (2) there is a substantial probability that, in the absence of closure, this compelling interest would be harmed; and (3) there are no alternatives to closure that would adequately protect the compelling interest.'" Brice, 649 F.3d at 796 (quoting Wash. Post v. Robinson, 935 F.2d 282, 290 (D.C. Cir. 1991)).
The Supreme Court has applied the First Amendment right of access not only to criminal trials, see Richmond Newspapers, Inc., 448 U.S. at 573, 100 S.Ct. 2814, but also to "judicial proceedings that are part of the criminal trial process," Ctr. for Nat'l Sec. Studies v. U.S. Dep't of Justice, 331 F.3d 918, 935 (D.C. Cir. 2003); see Press-Enter. I, 464 U.S. at 505, 104 S.Ct. 819 (criminal voir dire); Press-Enter. II, 478 U.S. at 13, 106 S.Ct. 2735 (criminal preliminary hearings, as "conducted in California"). "[M]ost circuit courts," moreover, "have recognized that the First Amendment right of access extends to civil trials and some civil filings." ACLU v. Holder, 673 F.3d 245, 252 (4th Cir. 2011) (collecting decisions).
The common law also provides a right of access "to inspect and copy public records and documents, including judicial records and documents." Nixon v. Warner Commc'ns, Inc., 435 U.S. 589, 597, 98 S.Ct. 1306, 55 L.Ed.2d 570 (1978) (footnote omitted). Determining "whether a document must be disclosed pursuant to the common law right of access involves a two-step inquiry." Wash. Legal Found. v. U.S. Sentencing Comm'n, 89 F.3d 897, 902 (D.C. Cir. 1996). "First, the court must decide whether the document sought is a `public record.'" Id. (internal quotation mark omitted). Second, "the court should proceed to balance the government's interest in keeping the document secret against the public's interest in disclosure." Id. (internal quotation mark omitted).
Courts weigh six "generalized" factors, enumerated in United States v. Hubbard, and any relevant "particularized" factors in determining "the precise weight to be assigned ... to the always strong presumption in favor of public access to judicial proceedings." 650 F.2d 293, 317 (D.C. Cir. 1980). The Hubbard test is the D.C. Circuit's "lodestar because it ensures that we fully account for the various public and private interests at stake." Metlife, Inc., 865 F.3d at 666 (collecting citations). The six generalized Hubbard factors are "(1) the need for public access to the documents at issue; (2) the extent of previous public access to the documents; (3) the fact that someone has objected to disclosure, and the identity of that person; (4) the strength of any property and privacy interests asserted; (5) the possibility of prejudice to those opposing disclosure; and (6) the purposes for which the documents
Hubbard makes clear, however, that these generalized interests do not exhaust the considerations that a court weighs in determining whether to unseal documents, and that a court also must consider such particularized interests as specific contexts make relevant, where the generalized factors do not adequately account for such particularized interests. See Hubbard, 650 F.2d at 323 ("To be weighed against the particularized reasons which may justify public access are the particularized privacy or other interests ... defendants may assert."), 324 (recognizing that a court may, in proper circumstances, determine disclosure's propriety "on the basis of the `particularized' factors" even where "analysis of the generalized interests at stake" suggest a different outcome).
The government's gathering of evidence, both real-time and historical, in criminal investigations is highly regulated by statutes, codified in Title 18 of the United States Code, and in rules set out in the Federal Rules of Criminal Procedure. See, e.g., 18 U.S.C. §§ 2510 et seq. (governing real-time interception of wire, oral, or electronic communications); 18 U.S.C. § 2518(11), (12) (governing roving wiretaps); 18 U.S.C. § 2703(c) (governing compelled disclosure of basic subscriber information from electronic communications service and remote computing providers); 18 U.S.C. § 3103a (permitting covert searches if notice will cause an "adverse result"); 18 U.S.C. § 3117 (governing mobile tracking devices); FED. R. CRIM. P. 41 (governing search and seizure warrants). While the petitioners' focus in this case is concededly "broad," June 2016 Tr. at 5:24, they nonetheless seek the unsealing of records related to only a subset of law enforcement evidence collection efforts, as authorized by the Pen Register Act ("PRA") and parts of the SCA. These two statutes are reviewed below, with particular attention to any provisions reflecting any presumption regarding initial or eventual public access.
The PRA authorizes "[a]n attorney for the Government" to apply "for an order or an extension of an order ... authorizing or approving the installation and use of a pen register or a trap and trace device under this chapter, in writing under oath or equivalent affirmation, to a court of competent jurisdiction." 18 U.S.C. § 3122(a)(1). PR/TT devices are devices or processes that record outgoing and incoming signals from an instrument or facility that transmits or receives an "electronic communication," and can be used to identify the source or recipient of that communication,
The PRA provides explicit instructions regarding the requisite content of applications seeking, and orders authorizing, the use of PR/TT devices. Each application must include "(1) the identity of the attorney for the Government or the State law enforcement or investigative officer making the application and the identity of the law enforcement agency conducting the investigation; and (2) a certification by the applicant that the information likely to be obtained is relevant to an ongoing criminal investigation being conducted by that agency." Id. § 3122(b). The order authorizing the use of the PR/TT device must be entered "ex parte" based on a judicial finding "that the attorney for the Government has certified to the court that the information likely to be obtained by such installation and use is relevant to an ongoing criminal investigation." Id. § 3123(a)(1).
A PR/TT order "shall specify" certain information about the target of this form of real-time surveillance, including: "the identity, if known, of the person to whom is leased or in whose name is listed the telephone line or other facility" on which the PR/TT device is used; "the identity, if known, of the person who is the subject of the criminal investigation;" "the attributes of the communications to which the order applies, including the number or other identifier and, if known, the location of the telephone line or other facility" on which the PR/TT device is used; and "a statement of the offense to which the information likely to be obtained by the pen register or trap and trace device relates." Id. § 3123(b)(1). PR/TT orders "shall authorize" the installation of a PR/TT device for no longer than 60 days, though extensions may be granted. Id. § 3123(c).
Notably, such orders also "shall direct that ... (1) the order be sealed until otherwise ordered by the court; and (2) the person owning or leasing the line or other facility to which the pen register or a trap and trace device is attached or applied, or who is obligated by the order to provide assistance to the applicant, not disclose the existence of the pen register or trap and trace device or the existence of the investigation to the listed subscriber, or to any other person, unless or until otherwise ordered by the court." Id. § 3123(d). The D.C. Circuit has pointed out that the PRA "provides for sealing [only] of a pen register order itself, not sealing of any and all information the order may contain even if
The SCA was enacted in 1986 as Title II of the Electronic Communications Privacy Act ("ECPA"), Pub. L. No. 99-508, 100 Stat. 1848 (1986), and regulates, inter alia, the government's access to stored wire and electronic communications. The SCA's § 2703 "permits the government, in specified circumstances, to compel service providers to disclose records or information pertaining to their customers as well as the contents of their customers' stored electronic communications." In re Search of Info. Associated with [redacted]@gmail.com That is Stored at Premises Controlled by Google, Inc. ("Google"), No. 16-MJ-00757 (BAH), 2017 WL 3445634, at *6 (D.D.C. July 31, 2017) (Howell, C. J.). "This provision's framework provides a sliding scale of protections, such that the legal mechanism law enforcement utilizes and showing required depends on the kind of information sought." Id.
Particularly relevant here, the SCA authorizes the government to require electronic communication service and remote computing service providers to disclose "the contents of a wire or electronic communication," without notice to the subscriber, pursuant to a warrant "issued using the procedures described in the Federal Rules of Criminal Procedure." 18 U.S.C. §§ 2703(a), (b)(1)(A). In addition to such SCA warrants, the SCA also authorizes the government to compel disclosure under § 2703(d) of records pertaining to the subscriber, beyond the basic information set out in 2703(c)(1), to include such records as "logs maintained by a network server." Orin S. Kerr, A User's Guide to the Stored Communications Act, and A Legislator's Guide to Amending It ("User's Guide"), 72 GEO. WASH. L. REV. 1208, 1219 (2004).
The petitioners now seek, as prospective relief, publication, for all PR/TT and SCA warrant and § 2703(d) applications, of "case number[s] and certain associated docket information, including the case name, date of application, and magistrate judge to whom the matter is assigned," as well as periodic unsealing of dockets that no longer require secrecy. Pet'rs' Suppl. Mem. Supp. Pet. ("Pet'rs' Mem.") at 33-35, 39-40, 41-42, ECF No. 47. As to retrospective relief, the petitioners seek extracted information from all sealed PR/TT matters that the USAO initiated since 2008, rather than only from a ten percent sample of such matters, plus "case numbers and certain associated docket information for [§ 2703(d)] matters filed from 2008 to the present." Id. at 36, 40. The petitioners do not seek extracted information from materials related to § 2703(d) applications, nor do the petitioners seek any retrospective relief as to SCA warrants. Id. at 40, 42-43.
As explained below, the petitioners' First Amendment claim fails, however, because the prerequisite of showing a longstanding tradition of public access simply does not exist as to the PR/TT and SCA materials at issue. Nevertheless, the petitioners' common law claim succeeds, albeit not to the full extent requested by the petitioners, as the materials at issue indisputably are judicial records, and the Hubbard factors, which govern decisions on whether to maintain documents under seal in the D.C. Circuit weigh in disclosure's favor, in light of the changes recently adopted by the USAO and Clerk's Office in the processing of such materials.
To satisfy the First Amendment right of access test's first prong requires a court to conclude that "an `unbroken, uncontradicted history' of openness" exists, Brice, 649 F.3d at 795, with respect to
SCA materials historically have not been publically available. The petitioners do not dispute this fact, instead acknowledging that such materials "routinely" are "maintained under seal," Pet'rs' Mem. at 1, and that SCA warrants and § 2703(d) materials "are frequently sealed and kept under seal indefinitely," depriving "the public [of] information as to the number of SCA search warrants and Section 2703(d) orders issued by district courts in any given time period." Id. at 4. The petitioners also concede that the "unsealing" of PR/TT orders and related materials "is in practice uncommon, and [that] judicial records regarding PR/TT devices, including basic docket information, are typically shielded from public scrutiny indefinitely." Id. at 3.
Statutory text and context likewise show that ECPA materials generally have not traditionally been available to the public. ECPA consists of three titles — Title I, amending the wiretap statute, which is not at issue here; Title II, the SCA; and Title III, the PRA. See ECPA, 100 Stat. 1848; S. Rep. No. 99-541 (1986), at 3; Google, 2017 WL 3445634, at *6 n.9. The PRA and wiretap statute each provide for default indefinite sealing of surveillance orders. See 18 U.S.C. §§ 2518(8)(b) ("Applications made and orders granted under [the wiretap statute] shall be sealed by the judge."), 3123(d) ("An order authorizing or approving the installation and use of a pen register or a trap and trace device shall direct that ... the order be sealed until otherwise ordered by the court."). The wiretap statute also provides for default sealing of wiretap applications, while the PRA imposes default nondisclosure obligations on third parties who own or lease facilities to which PR/TT devices are attached or who are obligated to assist the government in installing such devices. Id. §§ 2518(8)(b), 3123(d)(2). Although the SCA contains no similar default sealing or nondisclosure provisions, the SCA authorizes the government to seek such nondisclosure and, in practice, the government has "always been able to restrict access" to SCA warrants and § 2703(d) orders "by requesting a sealing order, regardless of the statutory default," United States v. Appelbaum (In re U.S. for an Order Pursuant to 18 U.S.C. Section 2703(D)), 707 F.3d 283, 291 n.9 (4th Cir. 2013) (quoting Times Mirror Co. v. United States, 873 F.2d 1210, 1214 (9th Cir. 1989)), and to delay or preclude a notification to a subscriber or customer of an SCA warrant or § 2703(d) order's existence, see 18 U.S.C. § 2705(a)-(b).
The petitioners argue that the absence of any longstanding tradition of openness as to materials relating to ECPA materials generally or SCA materials, in particular, does not defeat their First Amendment right of access claim, given ECPA's relatively recent vintage. Pet'rs' Mem. at 22-23. Instead, the petitioners contend that courts should evaluate ECPA procedures "by the historical tradition of access applicable to an older, analogous process — in this case, search warrants." Id. The First Amendment may create a right of access to a procedure that has no historical counterpart, as "[a] new procedure that substituted for an older one would presumably be evaluated by the tradition of access to the older procedure." El-Sayegh, 131 F.3d at 161. Although "affidavits submitted in support of search warrants are sometimes sealed to protect the secrecy of an ongoing criminal investigation," Hubbard, 650 F.2d at 316 n.84, the public has indeed had access to post-execution search warrant materials. "Frequently — probably most frequently — the warrant papers including supporting affidavits are open for inspection by the press and public in the clerk's office after the warrant has been executed." Baltimore Sun Co. v. Goetz, 886 F.2d 60, 64 (4th Cir. 1989); see also Times Mirror Co., 873 F.2d at 1214 ("[M]ost search warrant materials routinely become public."); In re Search Warrant for Secretarial Area Outside Office of Gunn, 855 F.2d 569, 573 (8th Cir. 1988) ("[A]lthough the process of issuing search warrants has traditionally not been conducted in an open fashion, search warrant applications and receipts are routinely filed with the clerk of court without seal."); In re N.Y. Times Co. for Access to Certain Sealed Court Records, 585 F.Supp.2d 83, 88 (D.D.C. 2008) ("[P]ost-investigation warrant materials... have historically been available to the public.... [W]arrant applications and receipts are routinely filed with the clerk of court without seal."). The "routine practice" in this Court "is to make [search] warrant materials publicly available after a search has been executed and a return is available," although "in a particular case a party may file a motion to seal the warrant materials even after a search is executed." Id. at 88 n.8.
To evaluate SCA procedures in light of executed search warrants' historical tradition of openness, however, is an inapposite analogy. Analytical substitution of one judicial procedure for another is appropriate only where the procedure to which petitioners assert a right of access is "new." El-Sayegh, 131 F.3d at 161. The SCA, as enacted as part of ECPA, is over 31 years old. See generally ECPA, 100 Stat. 1848. Thus, whether SCA orders are of such recent vintage as to require analytical
More fundamentally, analytical substitution is appropriate only where "[a] new procedure [] substituted for an older one." El-Sayegh, 131 F.3d at 161. First Amendment analysis "look[s] to the substance of [the government's] power[s] rather than how [an] Act nominally refers to those powers." Big Ridge, Inc. v. Fed. Mine Safety & Health Review Comm'n, 715 F.3d 631, 646 (7th Cir. 2013) (prioritizing substance over form in Fourth Amendment analysis); cf. R.J. Reynolds Tobacco Co. v. Shewry, 423 F.3d 906, 929 (9th Cir. 2005) (rejecting an "approach [that] would elevate form over substance and ... enable the government to dictate the First Amendment result simply by manipulating the agency in the decision-making process" (internal quotation marks omitted)). To determine whether the history of one judicial procedure may be substituted for another, then, requires determining the procedures' degree of functional similarity, rather than looking to labels. SCA orders, even SCA warrants, are functionally unlike traditional search warrants and more akin to subpoenas, to which no recognized First Amendment right of access attaches, in two significant respects: their method of execution and opportunity for pre-disclosure challenge. SCA orders thus do not analytically substitute for search warrants, meaning that the petitioners cannot rely on post-execution search warrant materials' "unbroken, uncontradicted history of openness," Brice, 649 F.3d at 795, to support their asserted First Amendment right of access to SCA materials.
"A warrant," as the Fourth Circuit has explained, "is a judicial authorization to a law enforcement officer to search or seize persons or things." In re Subpoena Duces Tecum, 228 F.3d 341, 348 (4th Cir. 2000). A search warrant "is issued without prior notice and is executed, often by force, with an unannounced and unanticipated physical intrusion," so as "[t]o preserve advantages of speed and surprise." Id. The target, moreover, has no opportunity to challenge a search warrant "before the warrant issues" — a judicial probable cause determination is the only pre-execution check on the government's ability to obtain information via a warrant. Id. ("The demonstration of probable cause to `a neutral judicial officer' places a `checkpoint between the Government and the citizen' where there otherwise would be no judicial supervision." (quoting Steagald v. United States, 451 U.S. 204, 212, 101 S.Ct. 1642, 68 L.Ed.2d 38 (1981)). For these reasons, search warrants entail an "intrusion [that] is both an immediate and substantial invasion of privacy." Id.
A subpoena operates differently. Whereas a search warrant entitles government agents to inspect and/or rifle through targets' "persons, houses, papers, and effects," U.S. CONST. amend. IV, a subpoena instead directs a target to "comply" with a "demand" for information, Subpoena Duces Tecum, 228 F.3d at 348; see also FED. R. CRIM. P. 17(a), (c). A subpoena "commences an adversary process during which the person served with the subpoena may challenge it in court before complying," meaning that "judicial process is afforded before any intrusion occurs." Subpoena Duces Tecum, 228 F.3d at 348; see also FED. R. CRIM. P. 17(c)(2) ("On motion made promptly, the court may quash or modify the subpoena if compliance would be unreasonable or oppressive."). A subpoena thus does not subject a target to "the immediacy and intrusiveness of a search and seizure conducted pursuant to a warrant." Subpoena Duces Tecum, 228 F.3d at 348. These distinctions between search warrants and subpoenas — (1) execution via government agents' physical
An SCA warrant, though a warrant in name, is more analogous to a subpoena than to a traditional search warrant with respect to (1) method of execution and (2) ex ante opportunity to challenge compelled disclosure. As to method of execution, an SCA warrant does not authorize the government to search and seize "persons or things," in a search warrant's manner, id. at 348, but rather requires a provider's "disclosure ... of the contents of [certain] communication[s,]" 18 U.S.C. § 2703(a), in a subpoena's manner. As this Court has recently explained:
Google, 2017 WL 3445634, at *18 (quoting Paul K. Ohm, Parallel-Effect Statutes and E-Mail "Warrants": Reframing the Internet Surveillance Debate, 72 GEO. WASH. L. REV. 1599, 1610-11 (2004)) (internal alterations and quotation marks omitted). As to an ex ante opportunity to challenge compelled disclosure, a recipient may move to quash an SCA warrant, see In re Warrant to Search a Certain E-Mail Account Controlled & Maintained by Microsoft Corp., 15 F.Supp.3d 466, 467 (S.D.N.Y. 2014) ("Microsoft I"), rev'd, 829 F.3d 197, 201 (2d Cir. 2016) ("Microsoft II"), reh'g denied, 855 F.3d 53 (2d Cir.) ("Microsoft III"), cert. granted sub nom. United States v. Microsoft Corp., ___ U.S. ___, 138 S.Ct. 356, 199 L.Ed.2d 261 (2017), and need not disclose any information sought until the adversary process completes. A traditional search warrant, in contrast, generally provides the target neither prior notice of the search and/or seizure nor ex ante opportunity to quash. See Subpoena Duces Tecum, 228 F.3d at 348.
In short, as other Judges have recognized, the government executes an SCA warrant in a manner more akin to that of a subpoena than to that of a traditional search warrant. See, e.g., Microsoft III, 855 F.3d at 60 (Jacobs, J., dissenting from the denial of rehearing en banc) (observing that an SCA warrant "functions as a subpoena though the [SCA] calls it a warrant"); id. at 70 (Raggi, J., dissenting from the order denying rehearing en banc) ("[An SCA warrant] does not authorize federal agents to search any premises or to seize any person or materials," but "authorizes a federal agent to require a service provider to disclose materials in its possession.... A search warrant is executed with respect to a place ... [b]y contrast, ... a § 2703(a) warrant is executed with respect to a person."); Microsoft II, 829 F.3d at 226 (Lynch, J., concurring) ("[An SCA] `warrant' ... does not appear to be a traditional search warrant.... [T]he SCA does not ... contain language implying ... that the warrant ... authorizes government agents to go to the premises of a service provider without prior notice to the provider, search those premises until they find the computer, server or other device on which the sought communications reside, and seize that device.... Rather, the statute expressly requires the `warrant' not to authorize a search or seizure, but ... to allow the government to require a service provider
Other aspects of the SCA confirm that an SCA warrant is in substance more analogous to a subpoena than to a traditional search warrant. First, "[p]arallel provisions" of § 2703 "permit the government to require equivalent disclosure of" identical categories of "communications by the service provider" through an SCA warrant, § 2703(d) order, or subpoena. Microsoft II, 829 F.3d at 227 (Lynch, J., concurring). "Indeed, the various methods of obtaining the communications ... are not merely parallel" but "all depend on the same verbal phrase" — "disclose" or "disclosure" — constituting "alternative means, applicable in different circumstances, to require the service provider to disclose the communications." Id. (alterations and internal quotation marks omitted); see 18 U.S.C. § 2703(a), (b)(1), (c)(1)-(2). Second, § 2703 uses the term "warrant" rather than "search warrant" in all but one instance, and then only with respect to a "search warrant ... requiring disclosure by a provider." 18 U.S.C. § 2703(g) (emphasis added). Third, § 2703 incorporates only those procedures of Federal Rule of Criminal Procedure 41 that govern a warrant's issuance, not those addressing execution. Id. § 2703(a); see Google, 2017 WL 3445634, at *8 ("The applicable procedures [governing an SCA warrant's issuance] are those found in Federal Rule of Criminal Procedure 41.").
For these reasons, SCA warrants in fact "are not search warrants at all and to call them such confuses legal terminology." Google, 2017 WL 3445634, at *18 (quoting Ohm, supra, at 1611). "The structure of § 2703 ... evinces an intent to create a distinct procedural mechanism from a traditional Rule 41 `search warrant.'" Id. To the extent SCA warrants are analogous to any longstanding procedures used by the government to collect evidence in criminal investigations, they are analogous to grand jury subpoenas, for the reasons explained above. No historical tradition of public access to grand jury subpoenas exists. See FED. R. CRIM. P. 6(e)(2)(B) (prohibiting prosecutors, grand jurors, court reporters, and others from "disclos[ing] a matter occurring before the grand jury"); Press-Enter. II, 478 U.S. at 10, 106 S.Ct. 2735 ("[G]rand jury proceedings have traditionally been closed to the public and the accused."); Douglas Oil Co.
Section 2703(d) and PR/TT orders are even less analogous to traditional search warrants than are SCA warrants, differing in both execution and applicable legal standard. An § 2703(d) order, like an SCA warrant, requires a provider to disclose information sought rather than authorizing the government to conduct a physical search, and allows a recipient an opportunity to quash prior to complying with the production demanded. 18 U.S.C. § 2703(b)-(d). Unlike an SCA search warrant, a § 2703(d) order's issuance need not comply with Rule 41 procedures or Rule 41's "probable cause" standard, but instead requires only "specific and articulable facts showing that there are reasonable grounds to believe" the information sought is "relevant and material to an ongoing criminal investigation." Id. § 2703(d). A PR/TT order likewise does not authorize government agents physically to search or seize "persons or things," Subpoena Duces Tecum, 228 F.3d at 348, in the manner of a search warrant, see Smith v. Maryland, 442 U.S. 735, 742, 99 S.Ct. 2577, 61 L.Ed.2d 220 (1979) (rejecting the claim that "a pen register's ... installation and use constitute[s] a `search'"), although such orders authorize the government physically to install a PR/TT device at a "telephone line or other facility," and the showing required for issuance of a PR/TT order is mere relevance "to an ongoing criminal investigation," 18 U.S.C. §§ 3123(a)(1), (b)(1)(A).
In sum, no historical tradition of openness exists as to PR/TT, SCA warrant, or § 2703(d) materials, and such orders are too functionally unlike search warrants in issuance, execution or challenge procedures to justify the latter's analytical substitution in evaluating the historical aspect of the petitioners' First Amendment right of access claim. The petitioners' failure to show an "`unbroken, uncontradicted history' of openness," Brice, 649 F.3d at 795, as to these statutorily authorized methods under the PRA and SCA for the government to gather evidence in criminal investigations precludes petitioners from prevailing on their First Amendment right of access claim, see In re Reporters Comm. For Freedom of the Press, 773 F.2d 1325, 1332 (D.C. Cir. 1985) ("[B]oth these [`history' and `logic'] questions must be answered affirmatively before a constitutional requirement of access can be imposed."), making unnecessary any consideration of the claim's other elements.
The petitioners also argue that the common law affords them a right of access to the PR/TT and SCA materials at issue. Pet'rs' Mem. at 15-21. The limited scope of the petitioners' claim is significant — the petitioners seek access only to PR/TT, SCA warrant and § 2703(d) materials from closed criminal investigations, and only to those portions of such materials that do not reveal personally identifying information. As such, the USAO does not contend that disclosure would impede an ongoing criminal investigation or reveal information that would impinge on personal privacy. For the reasons that follow, the
A presumptive common law right of access attaches only to documents that are "public record[s.]" Wash. Legal Found., 89 F.3d at 902 (internal quotation mark omitted). The USAO "[a]ssum[es] for the sake of argument" that the PR/TT and SCA materials at issue satisfy this requirement. Gov't's Opp'n at 25, ECF No. 51. The USAO is correct to so assume. "[W]hether something is a judicial record depends on `the role it plays in the adjudicatory process.'" Metlife, Inc., 865 F.3d at 666 (quoting SEC v. Am. Int'l Grp., 712 F.3d 1, 3 (D.C. Cir. 2013)). PR/TT and SCA applications and orders are judicial records, as "it is commonsensical that judicially authored or created documents are judicial records." Appelbaum, 707 F.3d at 290. A document filed with a court (1) that "can affect a court's decisionmaking process," (2) "which the parties hope to influence the court," and (3) "upon which the court must base its decision" likewise is a judicial record. Metlife, Inc., 865 F.3d at 667. PR/TT and SCA applications and any supporting materials, which the government submits to obtain the related orders and on which courts rely in deciding whether to enter such orders, undoubtedly meet this standard. See Appelbaum, 707 F.3d at 291 ("[T]he derivative § 2703(d) motions are `judicial records' because they were filed with the objective of obtaining judicial action or relief pertaining to § 2703(d) orders."); accord Goetz, 886 F.2d at 64 ("[A]ffidavits for search warrants are judicial records."). A "common law presumption of access [thus] attaches to" PR/TT and SCA orders and related materials, Appelbaum, 707 F.3d at 291, which the government can rebut only by showing "competing interests" that compel a "conclu[sion] that justice [] requires" maintaining a seal, Metlife, 865 F.3d at 665. The Hubbard factors govern this analysis. Id.
The petitioners seek access to information concerning the government's reliance on statutory authority under the PRA and SCA to gather evidence in criminal investigations using: (1) PR/TT devices, (2) § 2703(d) orders, and (3) SCA warrants. The type of information sought can be divided into three categories: (1) docket information, including the matter number and caption, the dates the application was filed and entered onto the docket, the assigned case type (e.g., MC, CV, CR, MJ) and event type (e.g., "Application for Pen Register"), and the assigned Magistrate Judge, see, e.g., Order and Notice to the Parties, Attach. A, List of Misc. Case Numbers With Assoc. Docket Info., ECF No. 22-1; (2) fifteen specified categories of information extracted from applications and orders for such materials, see, e.g., Extraction Chart; and (3) unsealed materials filed in a particular docket, with such redactions needed to protect information implicating privacy and law enforcement investigative interests. Having already obtained docket information for USAO-initiated PR/TT matters over a nine year period, as noted supra Part I.C, the petitioners continue to seek retrospective access to extracted information for all
Resolving the petitioners' common law right of access claim thus requires applying the Hubbard factors to three separate variables: (1) the statutory authority relied upon for the government's application and related order; (2) the type of information sought, i.e., docket information, extracted information, or full unsealing of materials; and (3) whether the petitioners seek this information prospectively or retrospectively. To simplify this analysis, the prospective aspect of the petitioners' claim is considered first, followed by the claim's retrospective aspect.
Consideration of the Hubbard factors, in light of the "`strong presumption in favor of public access to judicial proceedings,'" Metlife, 865 F.3d at 665 (quoting Hubbard, 650 F.2d at 317), and the petitioners' decision to disclaim any entitlement to materials whose disclosure would impinge upon privacy or law enforcement investigative prerogatives, yields a conclusion, due largely to the administrative changes recently adopted by the USAO and Clerk's Office, that the petitioners are entitled to prospective relief, albeit not all they request nor on a real-time basis. The retrospective relief sought, however, involves to a much greater extent than the prospective relief the imposition of substantial burdens on the USAO and the Clerk's Office in complying with any order requiring the unsealing and extraction of information from over two thousand PR/TT matters, and compilation of docket information for over two thousand 2703(d) matters. This burden, cognizable as a particularized Hubbard factor, weighs firmly against allowing the petitioners additional retrospective access to the PR/TT and SCA materials at issue beyond the significant access already granted.
The petitioners seek prospective access to "case number[s] and certain associated docket information" in all PR/TT, SCA warrant, and § 2703(d) matters "including the case name, date of application, and magistrate judge to whom the matter is assigned," along with continuous unsealing of all the records on the dockets that no longer need be maintained under seal. Pet'rs' Mem. at 33-35, 39-40, 41-42. Given their request for unsealing, the petitioners do not seek prospective extraction of any of the categories of information that the USAO extracted from the 2012 PR/TT matter sampling. See id. For the reasons that follow, the Hubbard factors weigh in favor of some prospective access to docket information for PR/TT, § 2703(d), and SCA warrant matters, though not in favor of the timetable for disclosure of such information requested by the petitioners nor in favor of the continuous unsealing of the underlying materials on dates certain, subject to rigorous judicial monitoring.
The need for public access to the documents at issue is the first Hubbard factor a court weighs in determining whether to unseal documents. 650 F.2d at 317. The USAO concedes "that transparency is important," and objects only to additional retrospective disclosure given the "disclosures that have been made to date," not to
The extent of the public's previous access to the documents at issue is the second factor to be weighed in determining whether to unseal documents. Hubbard, 650 F.2d at 318. "[P]revious access has been considered relevant to a determination whether more liberal access should be granted to materials formerly properly accessible on a limited basis through legitimate public channels and to a determination [of] whether further dissemination of already accessible materials can be restrained." Id. (internal citation omitted). This factor is typically applied to actual, extant documents and has limited usefulness in evaluating the docket information the petitioners seek prospectively to disclose since, obviously, the public could not possibly have enjoyed access to documents that have not yet been filed with or entered by the Court.
Nonetheless, as the petitioners observe, "[t]he public is well aware that law enforcement uses PR/TT devices, search warrants under the SCA, and Section 2703(d) orders in criminal investigations." Pet'rs' Mem. at 18-19. The public also has access to docket and limited extracted information concerning the USAO's filing of PR/TT applications from 2008 through 2016 in this Court, which information has been made publicly available in this litigation, see PR/TT Lists, as well as to the number of matters that both the USAO and DOJ filed during that period connected to case types in the CM/ECF system associated with § 2703(d) and SCA warrant applications, see SCA Warrant Notice; Section 2703(d) Notice, respectively. In the petitioners' view, such docket information provides valuable information to the public primarily due to the light shed on broad trends and patterns in the USAO's use of PR/TT orders, § 2703(d) orders, and SCA warrants. Pet'rs' Mem. at 12-13, 18.
The petitioners seek disclosure of docket information about PR/TT, § 2703(d), and SCA warrant matters on a continuous, real-time basis, and point to the U.S. District Court for the Eastern District of Virginia as doing so. See Pet'rs' Mem. at 32-33, 37-40. Indeed, the Eastern District of Virginia does make publicly available on a real-time basis limited docket information as to PR/TT and § 2703(d) applications (but not as to SCA warrant applications), apparently without any adverse results. See Appelbaum, 707 F.3d at 288. Yet, such real-time docket information necessarily implicates pending, active criminal investigations, while the petitioners here have from the outset limited their request to closed investigations, a limitation better respected by delaying
The fact that someone has objected to the documents' unsealing, and the objector's identity, is the third Hubbard factor to be weighed in reviewing motions to unseal. 650 F.2d at 319. No individual or entity, other than the USAO, has objected to prospective disclosure of the PR/TT, § 2703(d), and SCA warrant matter docket information at issue. See Pet'rs' Mem. at 19. The USAO asserts that the scope of the retrospective relief that the petitioners seek makes this factor's application impossible or unworkable, see Gov't's Opp'n at 34, but makes no similar argument as to prospective disclosure. The third factor thus weighs in favor of a common law right of access to the prospective disclosure of the docket information sought.
The strength of any property and privacy interests asserted is the fourth Hubbard factor. 650 F.2d at 320. No privacy or property interests are asserted with respect to the PR/TT, § 2703(d), and SCA warrant docket information the petitioners seek as prospective relief. Not only has no individual or entity (other than the USAO) come forward to object to the petitioners' request, but the petitioners expressly disclaim any right of access to personally identifiable information, and agree to redaction "[t]o the extent personally identifiable information would appear in any of the currently sealed docket information or other information that [p]etitioners seek to have unsealed." Pet'rs' Mem. at 19. In this circumstance, the requested docket information's disclosure is unlikely to impinge upon personal privacy concerns.
Moreover, the USAO has recently adopted use of uniform captions for PR/TT, § 2703(d), and SCA warrant matters that do not reveal, directly or indirectly, investigatory targets' identities and that facilitate disclosure, by avoiding the need to undertake the time-consuming and burdensome task of reviewing each caption to redact such information. In these circumstances, the fourth Hubbard factor thus weighs in favor of prospective disclosure of PR/TT, § 2703(d), and SCA warrant docket information.
Possibility of prejudice to an individual is the fifth Hubbard factor to be weighed in reviewing a motion to unseal. 650 F.2d at 320. Disclosing prospectively PR/TT, § 2703(d), and SCA warrant docket information would prejudice no individual, as such information reveals no personally identifiable information, due to the uniform captions adopted by the USAO. Nor would
The purpose for which documents were introduced is the sixth, final, and "single most important" Hubbard factor. 650 F.2d at 321. The public's entitlement to judicial records is commensurate with the documents' importance to the judicial proceeding in question. See id. (concluding that the sixth factor weighed against a right of access to documents that "were not determined by the trial judge to be relevant to the crimes charged," "used in the subsequent `trial,'" or "described or even expressly relied upon by the trial judge in his decision on the suppression motion," and that were only "admitted in the criminal proceedings [] to assist the court in its determination of whether the search and seizure were unlawfully overbroad."). In Hubbard, the Church of Scientology objected to the unsealing of papers that the defendants, who were all Church officials or employees, introduced into the underlying criminal proceedings for the sole purpose of contending that a government search and seizure had been unlawfully overbroad. Id. at 297-98, 317-318. The Hubbard panel observed, in the context of that case's particular facts, that recognizing a right of access to the documents at issue would create the perverse dynamic
Id. at 321.
Recognizing a common law right of access to prospective docket information here, in contrast, would place no one in a similar bind. PR/TT, § 2703(d), and SCA warrant materials, moreover, play a far more important role to judicial proceedings than did the documents at issue in Hubbard. Each PR/TT, § 2703(d), or SCA warrant application is generally treated as a separate judicial matter and initiates the assignment of a unique docket number.
Even measuring PR/TT, § 2703(d), and SCA warrant materials' importance relative to the criminal case in which the USAO introduces a surveillance order's fruits (and not all criminal investigations result in charges being filed), documents that the USAO uses to obtain evidence for presentation to the grand jury to obtain an indictment and/or to introduce at trial, serve an important purpose to judicial proceedings. To be sure, docket information from PR/TT, § 2703(d), and SCA warrant matters perhaps are less important to judicial proceedings than are the actual materials
In sum, five of six Hubbard factors, including the "single most important" such factor, id. — need for public access to the documents at issue, fact of objection and objector's identity, strength of any property and privacy interests asserted, possibility of prejudice, and purposes for which the documents were introduced — weigh in favor of prospective disclosure of PR/TT, § 2703(d), and SCA warrant matter docket information, while one factor — the extent of previous public access to the documents — has limited applicability. The Court thus concludes, considering the Hubbard factors together and as applied to the recently adopted administrative changes in the USAO and this Court's Clerk's Office, that the common law affords the petitioners a prospective right of access to the PR/TT, § 2703(d), and SCA warrant matter docket information.
The petitioners also seek retrospective relief in the form of public access to a different set of materials than those to which they seek prospective access. Specifically, as to retrospective relief, the petitioners seek: (1) to supplement the docket information already provided for PR/TT matters for the nine-year period of 2008 through 2016 with similar docket information over the same period for § 2703(d) matters; and (2) to compel the USAO to extract and disclose, as to all USAO-filed PR/TT matters during the years 2008 through 2016, the fifteen categories of information that the USAO provided as to the sampling of 2012 PR/TT matters. Pet'rs' Mem. at 35-38. The petitioners do not seek extracted information concerning historical § 2703(d) matters, and seek no retrospective relief whatsoever as to SCA warrants. Id. at 40, 42-43.
Hubbard's generalized factors weigh in favor of retrospective access to PR/TT extracted information and § 2703(d) docket information for essentially the same reasons they weigh in favor of prospective relief, as discussed above. For example, the process of manually extracting specified categories of information from closed PR/TT matters and providing such information in chart form substantially eliminates any risk that information properly left under seal, such as information bearing on personal privacy or law enforcement investigative prerogatives, will inadvertently be disclosed due to a human redaction error.
Nevertheless, that Hubbard's generalized factors weigh favorably toward retrospective unsealing and disclosure is not dispositive. The retrospective relief inquiry also implicates a particularized consideration that the petitioners' claim for prospective relief does not implicate as much, due to operational and administrative changes adopted recently by the USAO and Clerk's Office — namely, the enormous burden that complying with an order granting the retrospective relief sought would impose on the USAO and Clerk's Office. Under Hubbard, a district court must consider any "particularized ... interests"
The USAO estimates that completing the extraction process for one hundred percent of PR/TT matters that it initiated between the years 2008 through 2016, minus the twenty-four 2012 PR/TT applications from which information has already been extracted, would take roughly 720 hours. 6
Though disputed by the petitioners, the time estimate given by the USAO appears, if anything, to underestimate the time commitment that extracting information from one hundred percent of PR/TT matters that the USAO initiated from 2008 through 2016 would require. According to the Clerk's Office, the USAO filed a total of 2,248 PR/TT applications during this period. See generally PR/TT Lists. Assuming the USAO can extract information from twenty-four PR/TT matters in eight hours — a simplifying assumption made by the USAO, 6
Producing requested lists of § 2703(d) matter docket information for the relevant nine year period, meanwhile, would impose similarly significant resource burdens on the Court and Clerk's Office by consuming substantial amounts of staff time — in particular, time necessary to ensure that information properly left under seal is not inadvertently disclosed. The petitioners appear to assume that unsealing docket information for 2,636 § 2703(d) matters, see Section 2703(d) Notice, is a trivial clerical task, as easily performed as pressing the "print" button for a list of CM/ECF matters generated by the search criteria.
Moreover, prior to the standardization of § 2703(d) captions, see infra Part II.D, such captions not infrequently would reference not § 2703(d) itself but only 18 U.S.C. § 2705(b), the SCA's delayed notice provision. As a practical consequence, providing accurate and comprehensive § 2703(d) docket information would require carefully reviewing each § 2705(b) application that the USAO had filed to ascertain whether the application actually pertained to non-disclosure of a § 2703(d) order, a task fraught with peril given that § 2705(b)'s nondisclosure provision is available for both § 2703(d) orders and to grand jury subpoenas, which reveal "matter[s] occurring before the grand jury" and therefore are protected by Rule 6(e)'s secrecy protections. See Fed. R. Crim. P. 6(e)(2). Ensuring that disclosure of § 2703(d) materials would not inadvertently reveal confidential grand jury matters would require Court and Clerk's Office staff to undertake additional manual, time-consuming review.
These practical challenges should be minimized in future efforts to disclose docket information from USAO-initiated PR/TT, § 2703(d), and SCA warrant matters. The standardization of caption information adopted by the USAO for new PR/TT, § 2703(d), and SCA warrant applications and administrative steps taken by the Clerk's Office in assigning different CM/ECF case type designations to various sealed criminal investigative matters, described in further detail infra Part II.D, is intended to facilitate the unsealing and disclosure of docket information by predictably placing specified categories of information in designated locations within the caption and by enabling retrieval of specific types of sealed materials from CM/ECF. Yet, such administrative burdens are unavoidable as to disclosure of docket information concerning historical § 2703(d) and SCA warrant applications, and unwarranted in light of the unreliability and under-inclusiveness of the identification of these materials by the Clerk's Office, as detailed supra Part I.A; see 7
As described above, the burdens on the Clerk's Office and the USAO of the petitioners'
The petitioners argue that any administrative burden on the USAO or Clerk's Office that would attend granting the full scope of the retrospective relief sought "is not a compelling or countervailing interest sufficient to overcome the public's ... common law rights of access." Pet'rs' Mem. at 30. Hubbard, however, specifically instructs district courts to consider any "particularized ... interests" asserted against unsealing, 650 F.2d at 323, and such interests may, under appropriate circumstances, include the burden that complying with an order granting such relief would impose. The petitioners observe, correctly, that courts generally do not recognize such burden as a relevant factor in deciding the scope of a common law right of access to judicial records. Pet'rs' Mem. at 29-30 (citing United States v. Camick, 796 F.3d 1206, 1213 n.5 (10th Cir. 2015) (denying a motion to seal supplemental record, which allegedly was necessary to avoid an "unduly burdensome and costly" process of "review or redaction," given the "presumption in favor of the common-law right of access to judicial records" (internal quotation marks omitted)); Meyer v. UNUM Life Ins. Co. of Am., Civ. No. 12-1134-KHV, 2014 WL 1095743, at *2 (D. Kan. Mar. 19, 2014) (concluding that "[t]he task of redacting," though admittedly "unwieldy and burdensome," nonetheless "does not rise to a significant interest that outweighs the public's right of access")). This, however, is largely due to the fact that litigants ordinarily invoke the common law right of access with respect to specific documents, not to wholesale categories of sealed matters filed over an almost decade-long period, see, e.g., Camick, 796 F.3d at 1213 n.5 (reviewing motion to seal the supplemental record in a single criminal case); Meyer, 2014 WL 1095743, at *2 (reviewing motions to file particular exhibits in a single case under seal). Indeed, the petitioners identify no judicial decision recognizing such a right of access to broad categories of sealed materials filed over a period of years, let alone when such sealed materials are quintessentially sensitive because they relate to the exercise of statutory authorities to collect evidence in criminal investigations. Courts thus have had little occasion, in common law right of access matters, to grapple with the issue of administrative burden that would attend unsealing and disclosure requests of the pending petitions' scope.
Likewise, this Court has "declined to establish a public docket of materials filed in connection with any grand jury proceedings" on the ground, among others, "that to impose such a rule would be unduly burdensome" — a decision that the D.C. Circuit affirmed as within this Court's discretion. In re Sealed Case, 199 F.3d 522, 524, 526 (D.C. Cir. 2000) (internal quotation marks omitted). Though the petitioners there asserted an entitlement to disclosure under Local Rule of Criminal Procedure 6.1 rather than the common law, In re Sealed Case illustrates that a district court, in exercising discretion to make public or maintain under seal voluminous judicial records from entire categories of sealed matters, properly may consider whether granting the relief sought would "impos[e] undue administrative burdens on the trial court." Id. at 525.
Here, as in Gradick and In re Sealed Case, granting the petitioners' request for "across-the-board" access to extracted information from USAO-initiated PR/TT matters and § 2703(d) docket information in closed matters filed over a nine-year period, for the reasons explained above, "would be unduly burdensome" on the USAO and the Clerk's Office, thereby detracting from other mission-critical responsibilities. Id. at 523, 527; cf. Dietz v. Bouldin, ___ U.S. ___, 136 S.Ct. 1885, 1892-93, 195 L.Ed.2d 161 (2016) (recognizing a district court's "inherent authority to manage their dockets and courtrooms with a view toward the efficient and expedient
Although the USAO had agreed to extract fifteen categories of information from ten percent of USAO-filed PR/TT matters from each year from 2008 to 2011 and 2013 to 2016, the petitioners have rejected that offer. Pet'rs' Mem. at 35-38. In the petitioners' view, such a limited sampling of PR/TT matters would be "non-statistically significant" and inadequate "for the public to gain meaningful insight into the sealed PR/TT matters filed by the USAO" or to "allow journalists or the public to identify trends or identify non-routine requests." Id. at 37. They emphasize the virtual uselessness of extracted information from a small percentage of USAO-filed PR/TT matters in three declarations. See Decl. of Jason Leopold ("Leopold Decl.") ¶¶ 11, 15, ECF No. 38-2 ("[T]here is no way to accurately report on or understand the full scope of the PR/TT matters in this Court with only 10% of the relevant data.... [T]he limited data available to [journalists] severely hampers [their] ability to provide the comprehensive coverage the public deserves."); Decl. of Riana Pfefferkorn, Cryptography Fellow, Center for Internet & Soc'y ("CIS"), Stan. Law School ("CIS Decl.") ¶ 11-12, ECF No. 38-3 ("Unsealing a 10% sample of the D.C. PRTT Matters would be extremely unlikely to reveal all of the haystack's needles, and might capture none at all. In short: the only way to be sure that the public learns about these important matters — to find all of the needles — is to disclose the whole haystack for public review.... The public cannot get a full, informed understanding of government surveillance in this District if it is permitted to see only one small sample that will not reliably capture all the public-interest cases."); Decl. of Will Potter, Prof. of Journalism, Univ. of Mich. ("Potter Decl.") ¶ 12, ECF No. 38-4 ("Unsealing only 10% of these records will continue to prevent journalists, researchers, and academics from understanding the trends in the use of PR/TT devices.").
Indeed, the petitioners have represented that providing extracted information from a ten percent sampling of PR/TT matters could be worse than providing no information at all, as such a limited sampling "could lead to misleading, if not demonstrably inaccurate results." Leopold Decl. ¶ 11; see also Potter Decl. ¶ 12-13 ("It is methodologically unsound to attempt to show trends based on a random selection of only 10% of records from a given year.... With only 10% of the data available, a reporter would need to tell the editor, `No, the data is not even close to comprehensive, and any conclusions that can be drawn would not be reliable.' As one can imagine, a journalist would be severely limited in what they could write about the data."). The petitioners also assert that providing extracted information from less than one hundred percent of PR/TT matters would have little to no public value. See, e.g., Leopold Decl. ¶ 13 ("A larger sample size would not solve this problem. Because the universe of PR/TT matters at issue is so small, absent the release of data from all of the sealed cases relating to closed investigations there is little [one] could meaningfully say about the `big picture' with a level of confidence that would meet journalistic standards."); Potter Decl. ¶ 14 ("[U]nsealing or providing information for less than 100% of the records for these years will leave a journalist unable to perform a clear and thorough job reporting on the use of PR/TT devices. This would significantly undermine the ability of the public to understand law enforcement's use of this surveillance technology and to hold the government accountable.").
Accordingly, upon consideration, under Hubbard, of the USAO's and Clerk's Office's particularized interest in avoiding undue administrative burden, the common law right of access does not entitle the petitioners to any additional retrospective relief.
Having concluded that, given the USAO's and Clerk's Office's recently adopted administrative and operational changes in processing sealed government surveillance applications in criminal investigative matters, the common law affords the petitioners a prospective right of access sealed PR/TT, 2703(d), and SCA warrant matters, the Court next addresses the precise scope of the prospective access to which the petitioners are entitled. The agreement entered into by the Clerk's Office and USAO provides the public with a significant degree of information about this Court's judicial review process for such USAO-initiated matters that, in many respects, addresses substantial parts of the prospective relief the petitioners seek. See CLERK'S OFFICE, U.S. DIST. COURT, D.C. & CRIM. DIV., U.S. ATT'Y'S OFFICE, D.C., MEM. OF UNDERSTANDING: ELECTRONIC FILING OF CERTAIN SEALED APPLICATIONS & ORDERS ("MOU") (Aug. 15, 2017), http://www.dcd.uscourts.gov/sites/dcd/files/MOU_Electronic_Filing_Pen_Registers.pdf.
For example, among "changes to current practices relating to the filing, docketing, and unsealing" of sealed PR/TT, § 2703(d) and SCA warrant materials "in this District" demanded by the petitioners is that "government attorneys should be both permitted and required to file ... electronically via CM/ECF" such sealed materials. Pet'rs' Mem. at 32, 38, 41. The petitioners further ask that the "USAO and other government entities that file [these sealed materials] in this District should be encouraged to adopt uniform, standardized case captions and document titles ... that do not include, for example, target names, telephone numbers, and e-mail addresses." Id. at 33, 39, 42. These steps have already been accomplished or are underway.
Historically, the USAO was required by this Court's local rules to file all sealed applications for PR/TT orders, § 2703(d) orders, and/or SCA warrants in paper form, but effective November 9, 2017, the local rules were amended to permit the electronic filing of such documents, with the "prior written authorization" of the Clerk of Court. See LCrR 49(e)(4) ("Unless prior written authorization for electronic filing is given by the Clerk of Court, every document filed prior to the initial appearance of a criminal defendant, including but not limited to ... a pen register application ... [and] an application for stored electronic information or evidence... [or] for disclosure of electronically stored evidence shall be filed in paper
In addition, the MOU requires case captions for sealed applications and orders to follow standardized formats. MOU at 2. The standardized captions will contain no personally identifying information, such as the targeted email account, telephone number, or subscriber name, but, depending on the type of application, generally will include pertinent information about the number of targeted accounts, the service provider and the primary offense statute applicable to the criminal activity under investigation. Id. The captions for PR/TT applications, for example, must contain: (1) the number of target telephone lines, subscriber accounts, and/or devices that are the application's subject or subjects; (2) the type of target or targets (e.g., a landline, cellular, or mobile telephone; email account; cell tower; or other facility or device) subject to the application; (3) the service provider to which the order would be directed; and (4) the primary offense statute(s) under investigation. Id. This standard case caption containing the variable information detailed above must be used by the USAO when initiating or making successive applications in a sealed PR/TT matter. Id.
Such standardized captions will enable the Clerk's Office periodically to generate reports on the CM/ECF system reflecting the total number, matter docket numbers, and case captions associated with sealed matters, which reports may be unsealed and made publicly accessible, without undertaking the burdensome task of redacting personally identifiable or target information that may otherwise — and historically has been — placed in the caption.
The petitioners would have both the Clerk's Office and the USAO take two additional steps in providing prospective relief.
This request for real-time reporting by the Clerk's Office on the filing of PR/TT,
Instead, the Clerk's Office, as set out in the MOU, plans to provide biannual docket reports about various types of sealed criminal investigative matters filed twelve through six months prior to each report's publication. While some of these matters will remain open, the six-month delay in reporting somewhat reduces the risk to an ongoing criminal investigation. These reports will provide information about the total numbers of such matters and, as reflected in the standardized caption for each matter, the number and type of target accounts (e.g., landline telephone, cellular telephone, and/or email), the providers' names, and the primary offense statutes under investigation. This information on the sealed applications subject to judicial review will provide additional transparency as to the processing of these sensitive matters, without jeopardizing either privacy or law enforcement interests. Indeed, this information is far more robust than that seemingly sought by the petitioners.
Second, the petitioners would require the USAO or other government entity initiating a sealed matter "to promptly move to unseal or partially unseal" upon "the close of the related criminal investigation," and, if a matter remains sealed "six months (180 days) after the date it was initially filed," that the Court be prepared to issue "an order to show cause why it should not be unsealed in its entirety." Pet'rs' Mem. at 34-35, 39, 42. As the USAO correctly indicates, adoption of "a system that calls for the Court to issue show cause orders in each of the hundreds of PR/TT and SCA matters that are filed each year would be labor-intensive for the Clerk's Office and would require the USAO[] to expend resources to review each matter and respond to each show cause order." Gov't's Opp'n at 41 n.18. This is simply unworkable. Instead, periodic reports by the Clerk's Office concerning sealed criminal investigative matters and dockets will serve the public interest by providing additional transparency regarding the judicial review of sealed criminal investigative matters in a manner that is less burdensome to the Court, the Clerk's Office, and the USAO.
Moreover, the very reasons that the petitioners cite as the public value in obtaining public access to redacted PR/TT, § 2703(d), and SCA warrant materials — making the public aware of the USAO's use of (1) novel legal theories to obtain
A court's "decision as to access is one best left to the sound discretion of the trial court, a discretion to be exercised in light of the relevant facts and circumstances of the particular case." Nixon, 435 U.S. at 599, 98 S.Ct. 1306. The additional steps demanded by the petitioners as prospective relief would impose significant administrative and other burdens on the Clerk's Office and USAO, but would do little to increase transparency compared to the information that will be made publicly available under the MOU. For these reasons, the information and access afforded by the steps outlined in the MOU on a going-forward basis provide all the prospective relief to which the common law entitles the petitioners.
This litigation illustrates that "changing technology affects the public's appetite for information concerning court proceedings," and "[t]his in turn changes and affects the requirements for judicial transparency." Hon. T.S. Ellis III, Sealing, Judicial Transparency and Judicial Independence, 53 VILL. L. REV. 939, 942-43 (2008). Indeed, "[t]ransparency is a function of both technology and public expectations, and both of these factors vary over time." Id. at 941. While judicial independence is embedded in our constitutional framework, this critical feature of our federal government is bolstered by transparency in how the courts review and resolve the matters presented to them. Otherwise, "[s]ecret proceedings, including unwarranted or excessive sealing of court records, engender suspicion, mistrust and a lack of confidence in the judicial process and, if not rare and well understood as necessary, such proceedings will likely lead to attempts to limit judicial authority and independence." Id. at 940. Thus, taking stock of where transparency may be improved as to records originally sealed to good purpose, is not just a fruitful exercise that may be prodded by litigation such as the one at bar, but a necessary administrative endeavor for the courts.
In this case, the sealed judicial records at issue are sensitive government applications seeking authorization to collect, for use in ongoing criminal investigations, certain types of information about electronic and telephonic communications. The parties are in agreement that information in these sealed judicial records implicate myriad considerations, including the sensitive personal privacy and reputational interests of the customers or subscribers, about whom the information was sought; important public safety and law enforcement interests in avoiding any disruption
To that end, while the First Amendment extends no right of access to these judicial records, the Court identifies a prospective right of access, due to the significant administrative and operational reforms undertaken in tandem by the Clerk's Office and the USAO, to certain categories of information, which will be disclosed on a periodic basis, regarding the total number of PR/TT, § 2703(d), and SCA warrant applications filed by the USAO, the number and type of accounts that such applications target, the names of the providers to which these applications are directed, and the primary criminal offense under investigation for these applications. The prospective right of access articulated here is designed to minimize any risk of revealing information about ongoing law enforcement investigations or the individuals targeted, but will enable the public to know, albeit on a limited basis, more about what this Court is doing in reviewing these types of surveillance applications. No retrospective right of access is recognized, in consideration of the significant administrative burdens that retrospective disclosure would impose on the Clerk's Office and USAO.
For the foregoing reasons, the petitioners' petitions to unseal are granted in part and denied in part. An appropriate Order accompanies this Memorandum Opinion.
The Administrative Office of the U.S. Courts first developed CM/ECF in 1996 "for use in the [U.S. District Court for the] Northern District of Ohio to help the court deal with an onslaught of asbestos litigation and the massive amount of paperwork associated with it." Tanya White Cromwell, Electronic Case Filing Saves Space, Time, Improves Access to Documents, KAN. CITY BUS. J. (May 2, 2003, 11:00 PM CST), https://www.bizjournals.com/kansascity/stories/2003/03/03/focus3.html. After pilot programs were conducted in a handful of district courts, the system began to be rolled out nationwide to federal district courts in 2001 and 2002, soon followed by federal appellate courts in 2005. Daniel T. Fenske, E-Filing in Federal Courts: How to Avoid Common Mistakes, 17 PRETRIAL PRAC. & DISCOVERY 4, 4 (2009). According to information obtained from the Clerk's Office, this Court implemented CM/ECF for use in public civil cases in 2003, and in public criminal cases in 2005. Today, all federal district, bankruptcy, and appellate courts, except the U.S. Supreme Court, use the CM/ECF system. ADMIN. OFFICE OF THE U.S. COURTS, NEXT GENERATION OF CM/ECF: ADDITIONAL FUNCTIONAL REQUIREMENTS GROUP FINAL REPORT 1 (Feb. 27, 2012). The Clerk's Office has further advised that this Court began to use CM/ECF for the docketing in sealed cases of sealed government applications and orders in criminal investigative matters in 2008. New functionality added to the CM/ECF system allowed sealed documents to be docketed electronically on CM/ECF by the Clerk's Office on otherwise public civil dockets in 2009, and on public criminal dockets in 2011. In November 2013, the CM/ECF system in this Court was further enhanced to allow the electronic docketing by attorneys of sealed documents in otherwise public civil and criminal cases, with access to the sealed docket entries limited to court personnel and designated parties.
