Second Circuit Rules Against New York Times In Request To Unseal Wiretap Application In “Emperor’s Club” Case

The Second Circuit has ruled that the New York Times has not shown “good cause” in its application to “gain access to sealed wiretap applications relating to the investigation of the “Emperor’s Club,” the prostitution operation patronized by former Governor Eliot Spitzer and others.

Said the Court,

It is undisputed by the parties that there is a qualified common law “right to inspect and copy public records and documents, including judicial records and documents,” which courts administer by balancing the government’s interest in confidentiality and privacy against the public’s interest in inspection. …We assume arguendo that wiretap applications are (a) judicial records and (b) included in this qualified common law right of access, and turn our attention to Title III, which supersedes any arguable common law right…. Title III provides, in relevant part:

[Wiretap a]pplications made and orders granted under this chapter shall be sealed by the judge. Custody of the applications and orders shall be wherever the judge directs. Such applications and orders shall be disclosed only upon a showing of good cause before a judge of competent jurisdiction and shall not be destroyed except on order of the issuing or denying judge, and in any event shall be kept for ten years.

…

Instead of beginning with the statute, the District Court considered principally the contours of the common law and First Amendment rights of access to judicial records, and then interpreted Title III’s “good cause” requirement in a manner consistent with the perceived rights…. However, where there is a statute on point, we begin our consideration there. In construing the text of any federal statute, we first consider the precedents that bind us as an intermediate appellate court, which provide definitive interpretations of otherwise ambiguous language. Insofar as those precedents fail to resolve an apparent ambiguity, we examine the text of the statute itself, interpreting provisions in light of their ordinary meaning and their contextual setting…Where the statutory language remains ambiguous, “we resort to canons of construction and, if the meaning still remains ambiguous, to legislative history.” …

The central question of statutory interpretation in this case is the meaning of “good cause” within the context of Title III. Congress did not define the term, and we are aware of no Supreme Court case that has done so. However, our Court concluded a quarter-century ago that “good cause” could be found where the applicant seeking to unseal wiretap applications was an “aggrieved person,” but not upon any lesser showing….

We observed that Congress enacted Title III in the wake of Katz v. United States, 389 U.S. 347, 353, 355-56, 88 S. Ct. 507, 19 L. Ed. 2d 576 (1967), which held that, absent prior authorization by a court, wiretapping violated the Fourth Amendment’s prohibition against unreasonable search and seizure….We further commented that, in light of the Supreme Court’s concerns about privacy, Title III created a strong presumption against disclosure of the fruits of wiretap applications….Chief Judge Feinberg addressed the argument of NBC that “it is somehow unseemly that only the government can take advantage of wiretaps.”…. “This argument,” he concluded, “does not have much force.”…. Accordingly, we concluded that “turning Title III into a general civil discovery mechanism would simply ignore the privacy rights of those whose conversations are overheard. We agree with the government that this was not the intention of Congress.” …

Turning to NBC’s request to disclose wiretap applications, as opposed to the fruits of wiretap surveillance, we concluded that 18 U.S.C. § 2518(8)(b) reflected the same presumption against disclosure. “[W]e believe that Congress also did not intend this section to be used as an avenue for discovery by all private litigants in civil cases, unless they are directly aggrieved by a wiretap.”…We reached this conclusion regarding wiretap applications relying, in part, on the legislative history of Title III:

[T]he Senate Report on the 1968 enactment of Title III states that “applications and orders for authorization shall be treated confidentially. . . . [They] may not be disclosed except incidental to the disclosure or use of the records themselves after showing of good cause, for example, under [subsection] (10)(a). . . .” S. Rep. No. 1097, [90th Cong., 2d Sess. 67], at 105, [reprinted in] 1968 U.S. Code Cong. & Ad. News [2112,] 2194. Subsection (10)(a) provides for standing for an “aggrieved person” to move to suppress “the contents of any intercepted wire or oral communication . . . or evidence derived therefrom. . . .”

… NBC was not an “aggrieved person” because, according to the express terms of Title III, it was not “‘a party to any intercepted wire or oral communication or a person against whom the interception was directed.'” …

We further agreed with the District Court that, in addition to not having any claim as an “aggrieved person,” NBC had not even made the lesser showing that they had any need for the materials. … Under the statute, one must show “good cause,” which “means  that, at least minimally, there must be a need for disclosure.” … If, after all, a party does not have a need for the materials, then there is no good cause to disclose them. In In re NBC, we further refined the required showing of “good cause” by requiring that the party claiming access be an “aggrieved person.” …In our Circuit, then, the required showing that a claimant be an “aggrieved person” assumes that there has been a showing of need. Because NBC was not an aggrieved person under the statute, showing need was irrelevant–they still could not gain access to the wiretap applications. Id. Nonetheless, our passing reference to the fact that NBC had not demonstrated need buttressed the argument that it was not an “aggrieved person” in either the statutory or colloquial sense. Accordingly, we held that, in that context, NBC had not shown “good cause” for unsealing the wiretap applications. …

The Times argues that, unlike NBC, it is not a civil litigant, and therefore the reasoning in In re NBC does not apply. Rather, the Times posits that, unlike a “private litigant,” it has a “public interest in the materials or the common law or First Amendment right of access” to them. …However, we see no reason why our analysis in In re NBC that Title III’s “good cause” requirement demands a showing of an “aggrieved person” should not also apply to the instant case. It is irrelevant for the purposes of Title III that the Times is a newspaper investigating a matter of public importance. Like NBC, the Times does not suggest, much less show, that it is an “aggrieved person” within the express terms of the statute–that is, like NBC, the Times does not claim to be “a party to any intercepted wire or oral communication or a person against whom the interception was directed.” …

The Times further asserts that Title III cannot be read to supplant or forbid entirely the preexisting common law right to access judicial records unless the statute’s intent to abrogate the common law rule is “evident.” … In the Times’s view, the District Court properly interpreted Title III to be consistent with the common law presumption in favor of disclosure. However, our decision in In re NBC, which is a binding precedent of our Court, precludes this interpretation. In that case, we concluded that the structure and purpose of Title III–including the provision governing disclosure of wiretap applications–revealed a manifest congressional intent that wiretap applications be treated confidentially and clearly negated a presumption in favor of disclosure.

For all of these reasons, we conclude that the Times has not demonstrated “good cause” under Title III to unseal the wiretap applications authorized as part of the government’s investigation of the Emperor’s Club.

…

We turn now to the second question presented: Do the news media have a First Amendment right to access wiretap applications that overrides any statutory requirement for access? The government argues that its interpretation of Title III is consistent with the First Amendment because there is only a “qualified” constitutional right of access to judicial records, and that right does not extend to wiretap applications. The Times replies that, although this Court has not decided whether a First Amendment right of access applies to wiretap applications, similar documents–such as sealed documents in a summary judgment motion and sealed dockets–are subject to the public’s constitutional right to inspect judicial records. …The Times also notes that at least one other Circuit has held that there is a First Amendment right of access to documents filed in support of search warrant applications, although that decision did not consider access to the warrant applications themselves. …

We have previously endorsed two approaches to determine whether the First Amendment right of access extends to particular judicial records. First, the public has a right to gain access to judicial records (1) that “have historically been open to the press and general public,” and (2) where “public access plays a significant positive role in the functioning of the particular process in question.” …Second, we have held that the First Amendment protects access to judicial records that are “derived from or a necessary corollary of the capacity to attend the relevant proceedings.” …

Regarding the first approach, the government argues that the Times cannot satisfy the requirements of either (1) history or (2) logic (i.e., public policy). In the government’s view, wiretap applications are a creature of statute and only came into existence in 1968, when Title III was enacted in the aftermath of Katz v. United States, 389 U.S. 347, 88 S. Ct. 507, 19 L. Ed. 2d 576.   In addition, Congress expressly crafted the wiretap provisions of Title III to ensure confidentiality and privacy, suggesting that public policy is served by less disclosure rather than greater disclosure.

Regarding the second approach, which derives a right of access to documents from a right to attend judicial proceedings, the government argues that because wiretap applications are ex parte and in camera, and there is no public right to attend the underlying proceedings, there is no public right to gain access to the documents produced at those proceedings.

The Times responds that the “history and logic” requirements are satisfied in the instant case. Wiretap applications, the Times claims, are merely judicial records that, like search warrants or docket sheets, have been historically open to public access. …In addition, the Times argues that public policy weighs in favor of monitoring the government’s intrusions on personal privacy and the role of the courts in acquiescing to the government’s requests. ... The Times does not address the second approach identified by the courts, which conditions access to judicial documents on access to judicial proceedings. …

In our view, both approaches favor the government. Wiretap applications were created in 1968 in response to a Supreme Court decision that prohibited the use of electronic surveillance at the sole discretion of law enforcement. … Although wiretaps themselves pre-date wiretap applications, the introduction of wiretap applications is a more modern invention and, since the time of their creation in Title III, have been subject to a statutory presumption against disclosure. Accordingly, we conclude that these wiretap applications have not historically been open to the press and general public. In addition, the Times does not present a good reason why its preferred public policy–monitoring the government’s use of wiretaps and potential prosecutions of public officials–is more compelling than Congress’s apparent concern for confidentiality and privacy, which are reflected in the text of Title III and in its legislative history. ... Accordingly, the “history and logic” analysis weighs in favor of not recognizing a First Amendment right of access to wiretap applications. …

Regarding the second approach–based on attendance at proceedings–there is no question that the public and the press are not permitted to attend the ex parte, in camera proceedings where wiretap applications are presented to a district judge. As we have explained this second approach, “the media’s and public’s qualified right of access to judicial documents [is] derived from or a necessary corollary of the capacity to attend the relevant proceedings,” so that “the right to inspect documents derives from the public nature of particular tribunals.” … In this case, there is no First Amendment right of access under the attendance-at-judicial-proceedingsapproach because the underlying proceedings–held before grand juries and judicial officers in camera–are not public.

In sum, under either the “history and logic” or public attendance approach, the Times does not enjoy a First Amendment right of access to wiretap applications sealed under 18 U.S.C. § 2518(8)(b). In sum, under either the “history and logic” or public attendance approach, the Times does not enjoy a First Amendment right of access to wiretap applications sealed under 18 U.S.C. § 2518(8)(b).

The case is In the Matter of the Application of the New York Times Company to Unseal Wiretap & Search Warrant Materials, 2009 U.S. App. LEXIS 17642.