The New York Times does not have a First Amendment right of access to sealed wiretap applications filed in the investigation of the prostitution ring that led to former New York Gov. Eliot Spitzer's resignation, the 2nd Circuit U.S. Court of Appeals ruled on Aug. 6, 2009.
The media's interest in monitoring the government's use of wiretaps, even when they involve the potential prosecution of public officials, does not constitute "good cause" to override the statutory presumption against disclosing wiretap materials, the three-judge panel held in In re New York Times Co. to Unseal Wiretap & Search Warrant Materials, 577 F.3d 401 (2d Cir. 2009) (Spitzer II).
In March 2008, the government charged four people with running a prostitution ring called the Emperor's Club. Ensuing media reports identified Spitzer as a customer of the ring and the Democratic governor resigned within a few days of the revelation, although he was never charged.
The affidavit attached to the government's criminal complaint that charged the four defendants contained evidence obtained through wiretaps of cell phones used in connection with the prostitution ring. Under Title III of the Omnibus Crime Control and Streets Act of 1968, 18 U.S.C. section 2518(8)(b), wiretap applications are to be filed under judicial seal, but according to the 2nd Circuit's opinion, the orders and applications are normally unsealed as a criminal case approaches trial because 18 U.S.C. section 2518(9) requires disclosure of wiretap applications before the intercepted communications may be used against a party in court. However, because the four defendants in the Emperor's Club waived indictment and pleaded guilty in 2008, the wiretaps remained under seal.
In December 2008, The Times asked the United States District Court for the Southern District of New York to unseal the government's wiretap and search warrant applications in the Emperor's Club investigation. The government agreed to disclose the search warrant applications, but opposed unsealing the wiretap materials on the grounds that Title III prohibits disclosure of the wiretap applications except for a showing of "good cause."
At a hearing before the district court on Jan. 27, 2009, The Times agreed that the government could redact the names and identifying information of the Emperor's Club customers. On Feb. 19, 2009, Judge Jed S. Rakoff granted the newspaper'srequest to unseal the redacted wiretap applications in In re New York Times Co. to Unseal Wiretap & Search Warrant Materials, 600 F. Supp. 2d 504 (S.D.N.Y. 2009) (Spitzer I).
Rakoff concluded that the wiretap applications were "judicial records" and that the press had a right of access to the records under the First Amendment and common law. He determined the government no longer had an interest in maintaining the confidentiality of the wiretap applications since the investigation had been completed and any lingering privacy interest could be satisfied through the redactions. Rakoff also rejected the government's argument that Title III's "good cause" requirement created a presumption against disclosure that could not be overcome by journalistic interest.
"[T]here is no reason to believe that Congress intended "good cause" to be anything other than a synonym for the balancing dictated by . . . constitutional and common law principles," Rakoff wrote.
After the government appealed the order, the court in Spitzer II interpreted Title III as indicating a presumption against disclosure of the wiretap material and that a prior case, Nat'l Broad. Co. v. Dep't. of Justice, 735 F.2d 51 (2d Cir. 1984), held that "good cause" to overcome that presumption could only be found when the applicant seeking to unseal the wiretap was an "aggrieved person." Title III defines an "aggrieved person" as someone who "was a party to any intercepted wire, oral, or electronic communication or a person against whom the interception was directed."
Judge José A. Cabranes, who wrote the Spitzer II opinion, found that it was "irrelevant for the purposes of Title III that the Times is a newspaper investigating a matter of public importance."
The court then considered whether The Times had a sufficient First Amendment interest to override the Title III requirement for access. The court used the two-part "experience and logic test" that the U.S. Supreme Court relied on in Press-Enterprise Co. v. Superior Court, 478 U.S. 1 (1986), in which the Court extended the First Amendment right of public access to criminal proceedings to also include preliminary hearings.
Under the "experience and logic test," also known as the "history and logic test," a judicial proceeding is presumptively open to the public if it has historically been open or logic requires that it be open. Cabranes declined to recognize a First Amendment right of access under the "history" prong because "wiretap applications have not historically been open to the press and general public," and "there is no question that the public and the press are not permitted to attend the ... proceedings where wiretap applications are presented to a district judge." As for the logic prong, Cabranes did not agree that The Times' objective of monitoring the government's use of wiretaps outweighed Congress' preference for sealing wiretap applications.
Times lawyer David E. McCraw said the newspaper had not decided whether to seek further review of the ruling, according to an August 8 report in The Times. "We are obviously disappointed with the result," McCraw said, "and we continue to believe that public access to these types of court records would provide a valuable check on law enforcement agencies and on the courts."
In an August 18 column on the legal research Web site Findlaw.com, columnist and attorney Julie Hilden criticized the 2nd Circuit for protecting the privacy rights of those who were recorded without their consent since it is probable that the wiretapped conversations were between customers and law enforcement targets, or between the targets themselves. She emphasized that The Times had already agreed that the government could redact customers' names from the applications.
"So whose privacy rights, exactly, was the Second Circuit protecting - if customers were already protected by the parties' agreement, and targets were already exposed by their decision to plead guilty?" Hilden wrote. "Even if the statute [Title III] was driven by a concern for privacy, that concern seems negligible here."
In a September 15 post on the New York Federal Criminal Practice blog, attorney JaneAnne Murray criticized the court's decision as limiting the ability of the media to scrutinize how prosecutors obtain wiretaps in criminal investigations.
"This case sets a very high bar for media access to wiretap applications," Murray wrote. "It's hard not to imagine a more compelling reason for public disclosure of the submissions to a judge in support of surveillance than a now closed investigation that led to the resignation of a state governor. . . . [I]f access to wiretap applications is limited to 'aggrieved persons,' it puts the fox in charge of the proverbial henhouse."
- Cary Snyder
Silha Research Assistant