State secrets leaked. Sealed private investigations. It is almost certain that this WikiLeaks debacle will some day become a spy-thriller movie.
We’re all familiar with PFC Bradley Manning’s leak of confidential information to Julian Assange’s WikiLeaks. As part of the government’s investigation into possible criminal charges, they requested electronic communications of those two, plus a security researcher, a Dutch hacker, and an Icelandic Parliament member. That’s quite the ensemble cast of characters.
At some point, the government decided to unseal their Twitter requests. At the same time, they opposed the release of their other requests made pursuant to the ancient (in Internet terms) Electronic Communications Privacy Act. On Friday, the Fourth Circuit upheld a the lower court’s decision that kept those records sealed, citing the need for secrecy in the investigative stage of the proceedings and likening the §2703(d) requests to grand jury proceedings, which are also held in secret.
ECPA Requests are Judicial Records
Both the First Amendment and the common law provide access to judicial records. This of course begs the question: are ex parte §2703(d) requests judicial records? Judicially-created §2703(d) orders are, by common sense, judicial records. As for §2703(d) motions, the Fourth joins a number of other circuits in adopting the rule that a motion filed with the court is a judicial record when it plays a role in the adjudicative process or adjudicates substantive rights.
For ECPA requests, they are “filed with the objective of obtaining judicial action” and therefore judicial records. A similar example would be a search warrant affidavit.
First Amendment and Common Law Access
The test for First Amendment access requires asking (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.
Obviously, an ECPA request fails both prongs. The 1986 law is not old enough to have been “historically open” to the public (as opposed to a criminal trial) and public access does not help the process (it’s a secret investigation, much like a grand jury.)
As for the common law presumption of public access to judicial records, it can be overcome by a “significant countervailing interest.” That interest is the need for secrecy and to protect the investigation. The sealed documents “set forth sensitive nonpublic facts, including the identity and witnesses in an ongoing criminal investigation.”
In addition to considering the above factors, the judicial officer “must consider alternatives to sealing … which may include … access to some of the documents or releasing a redacted version.” The magistrate judge did exactly that here, releasing some documents, redacting others, and outlining his rationale in the accompanying opinion.
Because any public rights are overcome by state interests, the seal on the WikiLeaks requests will remain intact - for now. The court pointed out that the state’s interests in secrecy are not permanent and may become insufficient at some point in the future.