In re application of Forbes Media LLC and Thomas Brewster to unseal court records (WA)

Case Number: 2:21-mc-00007

Court: U.S. District Court for the Western District of Washington

Clients: Forbes Media LLC, Thomas Brewster

Petition to Unseal Filed: Jan. 25, 2021

Background: The federal government has long used the All Writs Act to compel private companies to assist law enforcement investigations, though rarely without controversy. In one high-profile example, the government cited the 232-year-old law in its attempt to force Apple to unlock an iPhone owned by the shooter in the 2015 San Bernardino terrorist attack. While that request was litigated in open court, many such applications for “technical assistance” are filed and granted in secret.

Recently, as Forbes Associate Editor Thomas Brewster first reported, the All Writs Act has been used to track suspects by harnessing mammoth, billion-dollar private travel databases in real-time. These databases have records on everything from airline flights to hotel reservations. But their use has concerned legal experts, who say that the government’s application of the law could set a dangerous precedent.

Recent orders and applications to harness these databases have remained under seal in three federal district courts. On behalf of Forbes and its Associate Editor Thomas Brewster, attorneys from the Reporters Committee and Davis Wright Tremaine LLP have requested that the U.S. District Court for the Western District of Washington unseal two orders issued in 2017 and 2019, arguing that the press and public have a constitutional and common-law right to access the orders and the government’s applications for them. (Reporters Committee attorneys have also filed applications to unseal similar orders in federal courts in California and Pennsylvania.)

Quote: “The government’s use of the All Writs Act to obtain judicial orders requiring private technology firms in general — and Sabre in particular — to provide technical assistance to the government is a matter of intense public interest, as well as a subject of Petitioners’ ongoing reporting. Unsealing the AWA Materials will shed light on the scope of the government’s authority to compel such assistance, provide valuable insight into Sabre’s role in monitoring travelers on behalf of law enforcement, and inform the press and public about the extent of their privacy when travelling.”

Co-counsel: Davis Wright Tremaine

Update: On July 21, 2021, the U.S. District Court for the Western District of Washington denied the unsealing application. A week later, Reporters Committee attorneys filed a notice of appeal to the U.S. Court of Appeals for the Ninth Circuit on behalf of Forbes and Brewster.

Filings:

2021-01-25: Petition to unseal court records

2021-01-26: Memorandum of points and authorities in support of petition to unseal court records

2021-07-21: Order denying petition to unseal court records

2021-07-28: Notice of appeal

2022-01-03: Petitioners-appellants’ consolidated opening brief

2022-01-10: Amicus briefs in support of petitioners-appellants (Restore the Fourth; Electronic Frontier Foundation and American Civil Liberties Union)

2022-04-25: Petitioners-appellants’ consolidated reply brief