Metropolitan News-Enterprise


Thursday, July 23, 2020


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Ninth Circuit Won’t Order Unsealing of Judicial Opinion

Panel Upholds Denial of Public Access to Written Ruling That Facebook Was Not in Contempt For Declining to Provide Justice Department Access to Calls Over Its Messenger App


By a MetNews Staff Writer


The Ninth U.S. Circuit Court of Appeals yesterday spurned a challenge by the American Civil Liberties Union Foundation and others to the sealing of a District Court opinion which found that Facebook, Inc. was not in contempt for allegedly violating the Wiretap Act by declining to allow government investigators access to calls over its messaging app.

A three-judge panel, in a brief memorandum opinion, denied the bid by the ACLU, the Washington Post and the Electronic Frontier Foundation for a reversal of a Feb. 11, 2019 order by District Court Chief Judge Lawrence J. O’Neill of the Eastern District of California denying a motion to unseal a decision he made the previous year and other documents.

Cooperation of Facebook was sought by federal investigators in connection with a probe of an international criminal gang, MS-13. They wanted to eavesdrop on encrypted calls over Facebook Messenger.

When Facebook denied access, the Justice Department moved for an order finding the technology giant in contempt. A hearing was held on Aug. 14, 2018 and, while O’Neill denied the government’s motion, it honored its request for secrecy because the matter related to an ongoing investigation.

ACLU’s Motion

The ACLU said in its Nov. 28, 2018 unsealing motion:

“Today, the debate about the power of law enforcement to undermine encryption and other security measures continues, in the United States and abroad….Some 1.3 billion people around the world use the Facebook Messenger app, making the government’s efforts in this matter of extraordinarily broad public concern….But this Court’s reasoning about why the government could not force Facebook to break its encryption remains under seal.”

It argued:

“Under both the First Amendment and common law, the public is entitled to access the docket sheet, judicial opinions, and orders associated with the Court’s rejection of the Justice Department’s motion to compel Facebook to break its encryption on its Messenger app (and any legal arguments submitted by the government that are incorporated, adopted, or rejected implicitly or explicitly in such judicial ruling).”

Ninth Circuit Opinion

The Ninth Circuit panel—comprised of Judges M. Margaret McKeown and Jacqueline H. Nguyen and Senior Judge N. Randy Smith—disagreed, saying in yesterday’s opinion:

“To determine whether a First Amendment right of access attaches to particular proceedings or records, we consider (1) ‘whether the place and process have historically been open to the press and general public,’ and (2) ‘whether public access plays a significant positive role in the functioning of the particular process in question.’ ”

The opinion continues:

“Because the materials at issue here do not pass this ‘experience and logic’ test, a qualified First Amendment right of access does not exist. The documents have not historically been open to the general public during an investigation. And. because of the ongoing nature of the investigation, the benefits of open proceedings are ‘more than outweighed by the damage to the criminal investigatory process.’ ”

Common Law Right

Responding to the contention that there is a common law right of access to judicial rulings and docket sheets, the judges wrote:

“We decline to consider whether there is a separate common law right of access to the documents because any presumption in favor of access would be outweighed by a compelling government interest in maintaining secrecy in an ongoing investigation….”

The judges cited the Ninth Circuit’s 2014 decision in United States v. Index Newspapers LLC. Circuit Judge Morgan Christen, after finding that there was no First Amendment right to public access to Grand Jury documents, said:

“We do not consider whether there is a separate common law right of access to these documents because any such presumption in favor of access is outweighed by the compelling government interest in maintaining grand jury secrecy.”

The case is American Civil Liberties Union Foundation v. United States Department of Justice, 19-15472.

The present case has been likened to one the Justice Department brought in 2016 against Apple for declining to unlock the iPhone of a suspect in San Bernardino. It dropped the case after a third party figured out how to perform the task.


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