In re application of Forbes Media LLC and Thomas Brewster to unseal court records (CA)
Case Number: 21-80017
Court: U.S. District Court for the Northern District of California
Clients: Forbes Media LLC, Thomas Brewster
Application 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, Reporters Committee attorneys have requested that the U.S. District Court for the Northern District of California unseal one such order from 2016, arguing that the press and public have a constitutional and common-law right to access the order and the government’s application for it. (Reporters Committee attorneys have also filed applications to unseal similar orders in federal courts in Pennsylvania and Washington.)
Quote: “Unsealing the AWA Materials at issue will ensure that actions of both the executive and judicial branches are open to public scrutiny, and will help inform the active, ongoing public debate over the government’s use of the All Writs Act to compel private technology companies to provide technical assistance.
Update: On July 13, 2021, the U.S. District Court for the Northern District of California denied the unsealing application. The district court concluded that neither a First Amendment nor a common law right of access attaches to such All Writs Act materials while an investigation is ongoing but ordered the government to provide annual status reports on the matter, to allow for reconsideration when the investigation is closed. On July 26, 2021, 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. On March 13, 2023, the Ninth Circuit affirmed the district court’s decision, concluding that no presumption of access attaches to technical-assistance orders so long as the arrest warrant to which they relate remains unexecuted. (The U.S. District Court for the Western District of Pennsylvania reached the opposite result in a December 2022 decision in a companion case.) Reporters Committee attorneys filed a petition for rehearing en banc on March 27, 2023, but it was denied less than a month later.
Filings:
2021-01-25: Application to unseal court records
2021-01-25: Memorandum of points and authorities in support of application to unseal court records
2021-02-23: Reply in support of application to unseal court records
2021-04-26: Report and recommendation to deny petition
2021-07-26: 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
2023-03-13: Opinion
2023-04-20: Order