UNITED STATES DEPARTMENT OF JUSTICE v. AMERICAN CIVIL LIBERTIES UNION FOUNDATION (2020)

United States Court of Appeals, Ninth Circuit.

UNITED STATES DEPARTMENT OF JUSTICE; Facebook, Inc., Respondents-Appellees, v. AMERICAN CIVIL LIBERTIES UNION FOUNDATION; et al., Movants-Appellants,
WP Company LLC, dba The Washington Post, Movant. United States Department of Justice; Facebook, Inc., Respondents-Appellees, v. WP Company LLC, dba The Washington Post, Movant-Appellant, American Civil Liberties Union Foundation; et al., Movants.

No. 19-15472, No. 19-15473

Decided: July 22, 2020

Before: McKEOWN, N.R. SMITH, and NGUYEN, Circuit Judges.

Jeffrey Steven Pollak, Attorney, Scott A.C. Meisler, Attorney, DOJ - U.S. Department of Justice, Washington, DC, Kimberly A. Sanchez, Esquire, Assistant U.S. Attorney, DOJ-USAO, Fresno, CA, for Respondent-Appellee United States Department of Justice Martie Kutscher Clark, Attorney, Gibson, Dunn & Crutcher LLP, Los Angeles, CA, Benjamin B. Wagner, Esquire, Assistant U.S. Attorney, Gibson, Dunn & Crutcher LLP, Palo Alto, CA, for Respondent-Appellee Facebook, Inc. Jennifer Granick, Stanford Law School Center for Internet and Society, Stanford, CA, Brett Max Kaufman, ACLU-American Civil Liberties Union Foundation, New York, NY, for Movants-Appellants American Civil Liberties Union Foundation, American Civil Liberties Union of Northern California, Riana Pfefferkor Jennifer Granick, Stanford Law School Center for Internet and Society, Stanford, CA, Brett Max Kaufman, ACLU-American Civil Liberties Union Foundation, New York, NY, Andrew Gellis Crocker, Aaron David Mackey, Electronic Frontier Foundation, San Francisco, CA, for Movant-Appellant Electronic Frontier Foundation Duffy Carolan, Jassy Vick Carolan LLP, San Francisco, CA, Jean-Paul Jassy, Attorney, Kevin Vick, Jassy Vick Carolan LLP, Los Angeles, CA, for Movant-Appellant WP Company LLC KatieLynn Boyd Townsend, Attorney, Reporters Committee for Freedom of the Press, Washington, DC, for Amicus Curiae Reporters Committee for Freedom of the Press, 23 Media Organizations Marc Zwillinger, Attorney, ZwillGen PLLC, Washington, DC, for Amicus Curiae Mozilla Corporation, Atlassian Corporation Elizabeth Hannah Rader, Calliope Legal, Olney, MD, for Amicus Curiae Former United States Magistrate Judges Phillip R. Malone, Attorney, Mills Legal Clinic Environmental Law Clinic, Stanford, CA, for Amicus Curiae Upturn, Harold Abelson, Steven M Bellovin, Matt Blaze, Whitfield Diffie

MEMORANDUM *

The American Civil Liberties Union, the Electronic Frontier Foundation, and the Washington Post appeal from the district court's denial of motions to unseal various contempt proceeding documents related to a technical assistance wiretap order under 18 U.S.C. § 2518(4). We have jurisdiction under 28 U.S.C. § 1291, and we affirm.

We review de novo whether a right of access to certain records or proceedings exists under the First Amendment or the common law. United States v. Carpenter, 923 F.3d 1172, 1178 (9th Cir. 2019). To determine whether a First Amendment right of access attaches to particular proceedings or records, we consider (1) “whether the place and process have historically been open to the press and general public,” and (2) “whether public access plays a significant positive role in the functioning of the particular process in question.” Press-Enterprise Co. v. Superior Court, 478 U.S. 1, 8, 106 S.Ct. 2735, 92 L.Ed.2d 1 (1986). Because the materials at issue here do not pass this “experience and logic” test, a qualified First Amendment right of access does not exist. The documents have not historically been open to the general public during an investigation. And, because of the ongoing nature of the investigation, the benefits of open proceedings are “more than outweighed by the damage to the criminal investigatory process.” See Times Mirror Co. v. United States, 873 F.2d 1210, 1215 (9th Cir. 1989).

We decline to consider whether there is a separate common law right of access to the documents because any presumption in favor of access would be outweighed by a compelling government interest in maintaining secrecy in an ongoing investigation. See United States v. Index Newspapers LLC, 766 F.3d 1072, 1090 (9th Cir. 2014) (refusing to consider “whether there is a common law right of access to the transcripts of the closed portion of the contempt hearing because, even if there is such a right, the government's interest in grand jury secrecy is a sufficiently important countervailing interest that overcomes any common law presumption in favor of access”) (internal citations, quotation marks, and alterations omitted).

AFFIRMED.

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