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Ninth Circuit:
Forbes Media Not Entitled to Information in Sealed Files
Opinion Says There’s No First Amendment or Common Law Right of Access to Court Orders
To Provide Information to FBI That Would Assist in Apprehension of Suspected Criminals
By a MetNews Staff Writer
An effort by Forbes Media and its associate editor to gain more information about how the federal government uses its statutory power to force private businesses to perform secret investigations to help it nab criminals has hit a roadblock, with the Ninth U.S. Circuit Court of Appeals holding yesterday that neither the First Amendment nor the common law provides a right of access to the information being sought.
Circuit Judge Daniel Aaron Bress authored the opinion. It affirms orders by District Court Judges Phyllis J. Hamilton of the Northern District of California and Ricardo S. Martinez of the Western District of Washington denying petitions to unseal court records.
Forbes and journalist Thomas Brewster wanted access to orders issued by federal courts to Sabre, an online travel-booking technology company, requiring it to gather and to share with the FBI information on specified travelers suspected of crimes. Brewster in March 2020 came across an application for one such order in the files of the District Court for the Southern District of California; it had been unsealed by mistake on Feb. 14 of that year.
The application sought an order requiring Sabre “to assist in the execution of a federal arrest warrant by periodically reviewing its records for evidence that the subject of the arrest warrant is traveling.”
The order was sought (and apparently was issued) pursuant to the All Writs Act (“AWA”) of 1879. It authorizes federal courts to “issue all writs necessary or appropriate in aid of their respective jurisdictions and agreeable to the usages and principles of law.”
Forbes’s Article
On July 16, 2020, Forbes posted online an article by Brewster, who is based in the U.K., that begins:
“American border patrol already has significant surveillance powers and collects vast amounts of data on who is flying into and out of the country. But the U.S. has another tool to watch over travellers across the world thanks to a little-known but influential Texan business called Sabre. As one of the biggest of three companies that store the vast majority of the world’s travel information—from airline seats to hotel bookings—Sabre has been called on to hand over that travellers’ data and, on at least one occasion, do ‘real-time’ tracking of a suspect. And, say former employees, the same powerful trove of information could be used to help monitor the spread of the Covid-19 pandemic.”
The article goes on to report:
“[A]s detailed in one international cybercrime investigation, Sabre can be compelled to proactively watch and report on a persons’ whereabouts as soon as they start travelling. In an order from December 2019, feds asked Sabre to provide the FBI with ‘real-time’ updates on the travel activities of a hacking suspect, an Indian fugitive called Deepanshu Kher.”
The application for the order says:
“The Government…requests that Sabre be ordered to provide representatives of the FBI complete and contemporaneous ‘realtime’ account activity information of the Traveler on a weekly, ongoing basis by telephone contact, email, and/or facsimile transmission, for a period of six months from the date of this Order.”
Bress’s Opinion
In his affirming the denial of the petitions, Bress said:
“Matters decided in the courts are often of considerable public interest, and we have no reason to question petitioners when they assert that the public has an interest in knowing more about how AWA orders are used to enlist private companies to assist in criminal investigations. The question here, however, is not one of public interest but public access. And greater public attention does not inevitably mean greater disclosure when competing interests are at stake.
“The First Amendment and common law rights to public access that petitioners invoke are neither all-encompassing nor absolute. In this case, we hold that those rights are not so expansive as to encompass the materials sought here—materials that have traditionally been maintained under seal to avoid exposing the government’s criminal investigations and compromising its pursuit of fugitives.”
He continued:
“Whether the analysis would be different when the arrests have been made and the criminal investigations completed is a matter for another day. Here, we hold that neither the First Amendment nor the common law provides a right of public access to sealed AWA technical assistance materials relating to ongoing criminal investigations involving unexecuted arrest warrants.”
‘Qualified Right’
The First Amendment provides only “a qualified right of public access to certain governmental proceedings,” Bress said, elaborating:
“[T]he First Amendment is not an all-access pass to any court proceeding or court record….The public generally has presumptive access to judicial opinions, hearings, and court filings, but we would not think the public should be privy to judicial deliberations. The public similarly may view many aspects of jury trials, but we do not allow a live video feed from the jury room.
“The same is true of certain aspects of criminal proceedings more generally. Grand jury proceedings are the classic example because, in that context, opening the courtroom and unveiling court files could dramatically imperil criminal investigations. Grand jury proceedings have thus long taken place outside of public view.”
Denial of access, in this instance, is dictated both by experience and logic, Bress declared. The experience has been that investigations have been conducted secretly, he said, adding that from the standpoint of logic, “allowing public access in these circumstances would likely have deleterious consequences.”
Matter of Logic
He explained:
“Providing public access to AWA technical assistance proceedings in support of unexecuted sealed arrest warrants could easily expose sensitive law-enforcement techniques and endanger active criminal investigations. Persons subject to sealed arrest warrants could learn not only that the government is on their trail but also the means the government is using to locate them. Criminal actors not yet subject to investigation might also catch on to the government’s broader investigatory methods. This could make it harder to catch fugitives, who might change their practices to avoid capture. Public disclosure could also, among other adverse consequences, create safety risks for law enforcement, lead to the destruction of evidence, and compromise sources who assist the government.”
Bress noted that “the common law presumption of access does not even come into play for court records ‘traditionally kept secret.’ ”
The case is Forbes Media LLC v. United States, 21-16233.
The hacker, Kher, had been employed by the Carlsbad Company in San Diego and, after he was fired, returned to India, gained access to the company’s computer, and deleted a massive number of files. Upon returning to the U.S., unaware of a warrant for his arrest, was captured, pled guilty to intentionally damaging a computer, and drew a two-year prison sentence.
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