Forbes Media LLC v. United States

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

FORBES MEDIA LLC; THOMAS No. 21-16233

BREWSTER,

D.C. No.

Plaintiffs-Appellants, 4:21-mc-80017-

PJH

v.

UNITED STATES OF AMERICA, OPINION

Defendant-Appellee.

Appeal from the United States District Court

for the Northern District of California

Phyllis J. Hamilton, District Judge, Presiding

In re: APPLICATION OF FORBES No. 21-35612

MEDIA AND THOMAS

BREWSTER TO UNSEAL COURT D.C. No.

RECORDS, 2:21-mc-00007-

______________________________ RSM

FORBES MEDIA LLC; THOMAS

BREWSTER,

Petitioners-Appellants,

2 FORBES MEDIA LLC V. UNITED STATES

v.

UNITED STATES OF AMERICA,

Respondent-Appellee.

Appeal from the United States District Court

for the Western District of Washington

Ricardo S. Martinez, District Judge, Presiding

Argued and Submitted August 12, 2022

San Francisco, California

Filed March 13, 2023

Before: Johnnie B. Rawlinson, Bridget S. Bade, and

Daniel A. Bress, Circuit Judges.

Opinion by Judge Bress

SUMMARY *

All Writs Act

Affirming two district court orders denying petitions to

unseal court records, the panel held that neither the First

Amendment nor the common law provides a right of public

*

This summary constitutes no part of the opinion of the court. It has

been prepared by court staff for the convenience of the reader.

FORBES MEDIA LLC V. UNITED STATES 3

access to third-party All Writs Act technical assistance

materials relating to ongoing criminal investigations

involving unexecuted arrest warrants.

Under the All Writs Act (“AWA”), federal courts may

order private parties to provide technical assistance to law

enforcement to aid in the execution of arrest warrants. Here,

Forbes Media and Thomas Brewster, a journalist and

associate editor at Forbes (“petitioners”), filed petitions in

the Northern District of California and the Western District

of Washington seeking to unseal past All Writs Act orders

issued to an online travel-booking technology company

related to ongoing criminal investigations in which the

United States had obtained arrest warrants but had been thus

far unable to make the arrests. The district courts in

California and Washington denied petitioners’ motions,

concluding for similar reasons, that there was no qualified

First Amendment or common law right of public access to

sealed AWA technical assistance materials relating to active

warrants, and that the government had a compelling interest

in non-disclosure while the criminal investigations remained

ongoing.

The panel held that neither the First Amendment nor the

common law rights to public access were so expansive as to

encompass the materials sought here—materials that have

traditionally been maintained under seal to avoid exposing

the government’s criminal investigations and compromising

its pursuit of fugitives. In determining that the First

Amendment’s right of access did not attach, the panel

applied the “experience and logic” test set forth in Press-

Enter. Co. v. Superior Court, 478 U.S. 1, 7 (1986), and

concluded that it was aware of no historical tradition of

public access to proceedings and materials under the AWA

to obtain technical assistance from third parties in executing

4 FORBES MEDIA LLC V. UNITED STATES

arrest warrants. By all accounts, these proceedings have

traditionally taken place ex parte and under seal. Logic

likewise militated against a qualified right of access under

the First Amendment. Providing public access to AWA

technical assistance proceedings in support of unexecuted

sealed arrest warrants could easily expose sensitive law-

enforcement techniques and endanger active criminal

investigations.

Addressing whether common law conferred such a right,

the panel held that petitioners had not demonstrated an

“important public need” justifying disclosure. Given the

similarities cross-cutting AWA third-party technical

assistance proceedings, grand jury proceedings, and pre-

indictment search warrant materials, as a matter of

analogical reasoning, the materials petitioners sought here

were not within the common law right of access. Finally,

and regardless of whether the argument was advanced under

the common law, the First Amendment, or both, the panel

rejected petitioners’ position that the district courts should

have analyzed the right of public access question by focusing

on the types of documents petitioners sought (motions,

orders, etc.) rather than the nature of the AWA proceedings

of which the documents were a part.

COUNSEL

Grayson Clary (argued) and Katie Townsend, Reporters

Committee for Freedom of the Press, Washington, D.C.;

Jean-Paul Jassy, Jassy Vick Carolan LLP, Los Angeles,

California; Ambika Kumar, Davis Wright Tremaine LLP,

Seattle, Washington; for Plaintiffs-Appellants.

FORBES MEDIA LLC V. UNITED STATES 5

Joshua K. Handell (argued), Attorney, Appellate Section,

Criminal Division; Lisa H. Miller, Deputy Assistant

Attorney General; Kenneth A. Polite Jr., Assistant Attorney

General; United States Department of Justice; Washington,

D.C.; Matthew M. Yelovich, Assistant United States

Attorney; Stephanie M. Hinds, United States Attorney for

the Northern District of California; Office of the United

States Attorney; San Francisco, California; Teal L. Miller,

Assistant United States Attorney; Nicholas W. Brown,

United States Attorney for the Western District of

Washington; Office of the United States Attorney; Seattle,

Washington; for Defendant-Appellee.

Mason A. Kortz, Cyber Law Clinic, Harvard Law School,

Cambridge, Massachusetts, for Amicus Curiae Restore the

Fourth.

Aaron Mackey and Jennifer Lynch, Electronic Frontier

Foundation, San Francisco, California; Brett Max Kaufman,

American Civil Liberties Foundation, New York, New

York; Jennifer Stisa Granick, American Civil Liberties

Foundation, San Francisco, California; Jacob A. Snow,

ACLU Foundation of Northern California, San Francisco,

California; Riana Pfefferkorn, Stanford Internet

Observatory, Stanford, California; for Amici Curiae the

Electronic Frontier Foundation, American Civil Liberties

Union Foundation, American Civil Liberties Union

Foundation of Northern California, and Riana Pfefferkorn.

6 FORBES MEDIA LLC V. UNITED STATES

OPINION

BRESS, Circuit Judge:

Under the All Writs Act, federal courts may order private

parties to provide technical assistance to law enforcement to

aid in the execution of arrest warrants. We are asked to

decide whether the First Amendment or the common law

creates a right of public access to third-party technical

assistance proceedings relating to unexecuted arrest

warrants in active criminal investigations. We hold that

neither the First Amendment nor the common law confers

such a right. Both district courts in this consolidated appeal

reached the same conclusion. We affirm.

I

The All Writs Act (AWA), which has its origins in the

Judiciary Act of 1789, provides that federal courts “may

issue all writs necessary or appropriate in aid of their

respective jurisdictions and agreeable to the usages and

principles of law.” 28 U.S.C. § 1651(a). Under the AWA,

a federal court may “issue such commands . . . as may be

necessary or appropriate to effectuate and prevent the

frustration of orders it has previously issued.” United States

v. New York Tel. Co., 434 U.S. 159, 172 (1977). This

includes the power to issue orders to persons “who, though

not parties to the original action or engaged in wrongdoing,”

are nonetheless poised to aid “the implementation of a court

order or the proper administration of justice.” Id. at 174.

Consistent with this authority, we have recognized that

the AWA may be used to order third parties to assist in the

execution of warrants. See Plum Creek Lumber Co. v.

Hutton, 608 F.2d 1283, 1289 (9th Cir. 1979) (“The All Writs

FORBES MEDIA LLC V. UNITED STATES 7

Act . . . permits the district court, in aid of a valid warrant, to

order a third party to provide nonburdensome technical

assistance to law enforcement officers.”). In practical terms,

this means that federal courts may issue orders to private

companies and others to provide technical assistance that

will help law enforcement apprehend a suspect under an

outstanding warrant, or that will otherwise aid an ongoing

criminal investigation. One high-profile example is the

Department of Justice’s 2016 application for an AWA order

that would have required Apple to provide technical

information on how to bypass the security features of an

iPhone belonging to a shooter in the San Bernardino terrorist

attack. With this background, we now turn to the matter

before us.

Thomas Brewster is a journalist and associate editor at

Forbes Media who covers surveillance, security, and privacy

issues. In March 2020, Brewster located an application for

an AWA technical assistance order on the public docket of

the District Court for the Southern District of California

(S.D. Cal.). According to the clerk’s stamp, the application

had been unsealed on February 14, 2020. It appears this

application was unsealed by mistake. Nevertheless,

Brewster lawfully obtained it, and the application is now part

of the public record in this case and others.

In the S.D. Cal. application, the Department of Justice

requested an AWA order compelling Sabre, an online travel-

booking technology company, “to assist in the execution of

a federal arrest warrant by periodically reviewing its records

for evidence that the subject of the arrest warrant is

traveling.” The application requested that, every week for

six months, Sabre “provide representatives of the FBI

complete and contemporaneous ‘real time’ account activity”

for an individual subject to an active warrant. The S.D. Cal.

8 FORBES MEDIA LLC V. UNITED STATES

application explained that Sabre “processes roughly one

third of all air travel reservations,” and that other courts had

previously invoked the AWA to order Sabre to assist in the

execution of arrest warrants. For support, the government’s

S.D. Cal. application specifically cited several past AWA

orders issued to Sabre by federal courts in the Western

District of Washington, Northern District of California,

Western District of Pennsylvania, and Eastern District of

Virginia.

In July 2020, Forbes published an online article about the

S.D. Cal. application entitled: “The FBI Is Secretly Using A

$2 Billion Travel Company As A Global Surveillance Tool.”

This article, which Brewster authored, identified by name

the fugitive who was the subject of the arrest warrant, as well

as the details of the government’s request for assistance to

Sabre. The article also linked to an unredacted copy of the

S.D. Cal. application, which was hosted on a third-party

server. That linked application contained personal

identifying information of the fugitive, including his foreign

address and passport number.

Maintaining that AWA orders raise vital issues of public

concern, Brewster and Forbes (petitioners) filed petitions in

the Northern District of California and the Western District

of Washington seeking to unseal court records for those

matters referenced in the S.D. Cal. application. Each

petition requested access to (1) any AWA order that had

issued; (2) the government’s application for such an order

and any supporting documentation; (3) any other records,

such as sealing motions and orders; and (4) the relevant

docket sheets. The AWA orders in these cases related to

ongoing criminal investigations in which the United States

FORBES MEDIA LLC V. UNITED STATES 9

had obtained arrest warrants but had been thus far unable to

make the arrests. 1

The district courts in California and Washington denied

petitioners’ motions. For similar reasons, the courts

concluded that there is no qualified First Amendment or

common law right of public access to sealed AWA technical

assistance materials relating to active warrants, and that the

government has a compelling interest in non-disclosure

while the criminal investigations remain ongoing. Both

courts also found that releasing the sealed information with

redactions would not adequately protect the government’s

interests in ensuring that active criminal investigations are

not jeopardized. The only notable difference between the

two rulings is that the Northern District of California sua

sponte ordered the government to give notice when its

criminal investigation closed or became public, on the theory

that, as to a potential right of access, “a different court may

come to a different conclusion in a post-investigative

context.”

Petitioners appealed both decisions, and we consolidated

the appeals. We have jurisdiction under 28 U.S.C. § 1291.

II

Matters decided in the courts are often of considerable

public interest, and we have no reason to question petitioners

when they assert that the public has an interest in knowing

more about how AWA orders are used to enlist private

companies to assist in criminal investigations. The question

here, however, is not one of public interest but public access.

1

Petitioners filed similar requests in the Western District of

Pennsylvania and the Eastern District of Virginia, which we will discuss

further below.

10 FORBES MEDIA LLC V. UNITED STATES

And greater public attention does not inevitably mean

greater disclosure when competing interests are at stake.

The First Amendment and common law rights to public

access that petitioners invoke are neither all-encompassing

nor absolute. In this case, we hold that those rights are not

so expansive as to encompass the materials sought here—

materials that have traditionally been maintained under seal

to avoid exposing the government’s criminal investigations

and compromising its pursuit of fugitives. Whether the

analysis would be different when the arrests have been made

and the criminal investigations completed is a matter for

another day. Here, we hold that neither the First Amendment

nor the common law provides a right of public access to

sealed AWA technical assistance materials relating to

ongoing criminal investigations involving unexecuted arrest

warrants.

A

We begin with the First Amendment, which provides a

qualified right of public access to certain governmental

proceedings. See Press-Enter. Co. v. Superior Court, 478

U.S. 1, 7 (1986) (Press Enterprise II); First Amend. Coal. of

Ariz., Inc. v. Ryan, 938 F.3d 1069, 1074 (9th Cir. 2019). This

right extends to some criminal proceedings, such as trials,

jury-selection processes, and preliminary hearings. First

Amend. Coal., 938 F.3d at 1078 (citing Press-Enterprise II,

478 U.S. at 13; Press-Enter. Co. v. Superior Court, 464 U.S.

501, 512 (1984) (Press-Enterprise I); Globe Newspaper Co.

v. Superior Court, 457 U.S. 596, 606 (1982); Richmond

Newspapers, Inc. v. Virginia, 448 U.S. 555, 580 (1980)

(plurality op.)). The First Amendment right of access also

extends to “various documents filed in criminal

proceedings,” such as plea agreements. Id.

FORBES MEDIA LLC V. UNITED STATES 11

But the First Amendment is not an all-access pass to any

court proceeding or court record. As we have explained,

although “[e]very judicial proceeding, indeed every

governmental process, arguably benefits from public

scrutiny to some degree,” there are situations in which

“complete openness would undermine important values that

are served by keeping some proceedings closed to the

public.” Times Mirror Co. v. United States, 873 F.2d 1210,

1213 (9th Cir. 1989). The public generally has presumptive

access to judicial opinions, hearings, and court filings, but

we would not think the public should be privy to judicial

deliberations. The public similarly may view many aspects

of jury trials, but we do not allow a live video feed from the

jury room.

The same is true of certain aspects of criminal

proceedings more generally. Grand jury proceedings are the

classic example because, in that context, opening the

courtroom and unveiling court files could dramatically

imperil criminal investigations. Grand jury proceedings

have thus long taken place outside of public view. See Press

Enterprise II, 478 U.S. at 9; Douglas Oil Co. v. Petrol Stops

Nw., 441 U.S. 211, 218 (1979); Times Mirror, 873 F.2d at

1215; see also Phoenix Newspapers, Inc. v. U.S. Dist. Court

for Dist. of Ariz., 156 F.3d 940, 946 (9th Cir. 1998) (“Of

course, there is no right of access which attaches to all

judicial proceedings, even all criminal proceedings.”).

The competing interests at stake in this area led the

Supreme Court to adopt what has become known as the

“experience and logic” test. See Press-Enterprise II, 478

U.S. at 8–9. To determine if a qualified First Amendment

right of access attaches, we must consider (1) experience:

“whether the type of proceeding at issue has been

traditionally conducted in an open fashion,” Oregonian

12 FORBES MEDIA LLC V. UNITED STATES

Publ’g Co. v. U.S. Dist. Court for Dist. of Oregon, 920 F.2d

1462, 1465 (9th Cir. 1990); and (2) logic: “whether public

access plays a significant positive role in the functioning of

the particular process in question.” Press-Enterprise II, 478

U.S. at 8. Even with a sufficient showing under this test,

however, a qualified First Amendment right can still be

“overcome by a compelling governmental interest” in

nondisclosure. In re Copley Press, Inc., 518 F.3d 1022, 1026

(9th Cir. 2008).

Turning to the “experience” and “logic” analysis, we

first conclude with little difficulty that petitioners have not

made a sufficient showing under the “experience” prong. In

evaluating “experience,” we consider “whether the place and

process have historically been open to the press and general

public.” Press-Enterprise II, 478 U.S. at 8. Here, we are

aware of no historical tradition of public access to

proceedings and materials under the AWA to obtain

technical assistance from third parties in executing arrest

warrants. By all accounts, these proceedings have

traditionally taken place ex parte and under seal.

In this respect, AWA technical assistance proceedings

are similar to other court proceedings relating to criminal

investigations that have been traditionally conducted outside

of public view. Grand jury proceedings, as we have noted,

have long been kept secret. The same is true of pre-

indictment search warrant proceedings. And in Times

Mirror, the precedent most relevant to this case, we

specifically held that “members of the public have no right

of access to search warrant materials while a pre-indictment

investigation is under way.” 873 F.2d at 1211. We

explained in Times Mirror that search warrants are

traditionally issued upon the government’s ex parte

applications, which courts consider in camera. Id. at 1214.

FORBES MEDIA LLC V. UNITED STATES 13

We concluded that because the process for issuing warrants

“has always been considered an extension of the criminal

investigation itself,” it “follow[ed] that the information

disclosed to the magistrate judge in support of the warrant

request is entitled to the same confidentiality accorded other

aspects of the criminal investigation.” Id. That same

reasoning inheres here. AWA technical assistance

proceedings, which have been traditionally conducted under

seal, are part and parcel of criminal investigations in ways

analogous to search warrant proceedings. And here, as in

both Times Mirror and the grand jury context, “there is no

history of unrestricted access” to the materials petitioners

seek. Id.

Trying a different angle, petitioners argue that

proceedings for injunctive relief are traditionally open to the

public, and that because AWA technical assistance

proceedings can lead to orders that are injunctive in nature,

we should regard AWA technical assistance proceedings as

presumptively public, too. We reject this logic, which

operates at a stratum of abstraction far removed from the

nature of the AWA proceedings at issue here. The Supreme

Court has instructed that in this area of constitutional law,

“the First Amendment question cannot be resolved solely on

the label we give the event, i.e., ‘trial.’” Press-Enterprise II,

478 U.S. at 7. It is therefore not enough, as petitioners would

have it, that AWA technical assistance proceedings may

look like injunctive relief proceedings in some stylized

sense. In an area of First Amendment jurisprudence driven

by “functional concerns,” Cal. First Amend. Coal. v.

Woodford, 299 F.3d 868, 877 (9th Cir. 2002), petitioners’

analogy to injunctive relief is far too formalistic. Any

similarity between AWA technical assistance proceedings

and typical requests for injunctive relief—which do not

14 FORBES MEDIA LLC V. UNITED STATES

fairly approximate AWA proceedings anyway—is

insufficient to establish the history of open access required

under the Supreme Court’s “experience” inquiry.

The absence of experience, however, does not

necessarily foreclose a qualified right of public access under

the First Amendment. We have held that “logic alone, even

without experience, may be enough to establish the right.”

Copley Press, 518 F.3d at 1026. But in this instance, logic

likewise militates against a qualified right of access under

the First Amendment.

As we noted above, under “logic” we consider “whether

public access plays a significant positive role in the

functioning of the particular process in question.” Press-

Enterprise Co. II, 478 U.S. at 8. Not every request for public

access fits that bill. The Supreme Court has recognized that,

“[a]lthough many governmental processes operate best

under public scrutiny, it takes little imagination to recognize

that there are some kinds of government operations that

would be totally frustrated if conducted openly.” Id. at 8–9.

We have thus made clear that “[w]here the harm caused by

disclosure of judicial records outweighs the benefit of

disclosure to the public, public access no longer ‘plays a

significant positive role in the functioning of the particular

process in question.’” United States v. Index Newspapers,

766 F.3d 1072, 1087–88 (9th Cir. 2014) (quoting Press-

Enterprise Co. II, 478 U.S. at 8).

In this case, we conclude that public access would not

play a significant positive role in the functioning of AWA

technical assistance proceedings involving outstanding

arrest warrants that remain sealed. Indeed, far from playing

a significant positive role, allowing public access in these

circumstances would likely have deleterious consequences.

FORBES MEDIA LLC V. UNITED STATES 15

Our decision in Times Mirror is highly instructive on this

point.

There, in holding that the First Amendment did not

create a qualified right of access to search warrants and

related materials at the pre-indictment stage of a criminal

investigation, we concluded that “logic” did not support

disclosure. 873 F.2d at 1214–18. We acknowledged the

potential benefits of public access, noting that “open warrant

proceedings might operate as a curb on prosecutorial or

judicial misconduct.” Id. at 1217 (citation and quotation

marks omitted). And we further accepted that “public access

would doubtless have some positive effect by increasing the

flow of information to the public about the workings of the

government and by deterring judicial and law enforcement

officers from abusing the warrant process.” Id. at 1218.

These potential benefits are similar to the ones that

petitioners advance in this case.

But these asserted benefits did not rule the day in Times

Mirror, and they do not do so here. In Times Mirror, “logic”

did not support public access because the “clearly

legitimate” interests supporting disclosure were “more than

outweighed by the damage to the criminal investigatory

process that could result from open warrant proceedings.”

Id. at 1215. Analogizing to grand jury proceedings, which

we viewed as “indistinguishable,” we explained that open

search warrant proceedings would jeopardize criminal

investigations. Id. Among other things, if the search warrant

proceedings or related documents were made public, “there

would be the obvious risk that the subject of the search

warrant would learn of its existence and destroy evidence of

criminal activity before the warrant could be executed.” Id.

We also cited the importance of protecting the privacy of

persons identified in the warrants, as well as the need to

16 FORBES MEDIA LLC V. UNITED STATES

avoid encouraging suspects to flee the jurisdiction. Id. at

1215–16. We concluded that for these reasons, “the

incremental value in public access is slight compared to the

government’s interest in secrecy at this stage of the

investigation.” Id. at 1218; see also id. at 1217 (“[W]hatever

the social utility of open warrant proceedings and materials

while a pre-indictment investigation is ongoing, we believe

it would be outweighed by the substantial burden openness

would impose on government investigations.”).

Similar reasoning supports our analysis under the “logic”

prong here. Providing public access to AWA technical

assistance proceedings in support of unexecuted sealed

arrest warrants could easily expose sensitive law-

enforcement techniques and endanger active criminal

investigations. Persons subject to sealed arrest warrants

could learn not only that the government is on their trail but

also the means the government is using to locate them.

Criminal actors not yet subject to investigation might also

catch on to the government’s broader investigatory methods.

This could make it harder to catch fugitives, who might

change their practices to avoid capture. Public disclosure

could also, among other adverse consequences, create safety

risks for law enforcement, lead to the destruction of

evidence, and compromise sources who assist the

government.

Included in the record in this case is a declaration from

FBI Special Agent Jared Brown that lays out how the public

disclosure of AWA technical assistance proceedings and

records could impede criminal investigations. We find this

declaration persuasive. It confirms that publicizing the

details of secret law enforcement efforts to arrest suspected

wrongdoers “would hinder, rather than facilitate, . . . the

government’s ability to conduct criminal investigations.”

FORBES MEDIA LLC V. UNITED STATES 17

Times Mirror, 873 F.2d at 1215. Indeed, because an arrest

warrant pertains to a suspected criminal himself, disclosure

of AWA technical assistance proceedings involving active

arrest warrants may compromise criminal investigations to

an even greater degree than the public release of search

warrants. This is especially so considering that the

government uses AWA technical assistance orders to locate

international fugitives, who may pose unique dangers to

public safety. The “logic” analysis of Times Mirror applies

perforce in this context.

We acknowledge petitioners’ central rejoinder that

greater public scrutiny of AWA technical assistance

proceedings could act as a check on government overreach.

But that is the same worthy interest that we ultimately found

insufficient in Times Mirror. See 873 F.2d at 1215–16,

1218. Faced with that precedent, petitioners theorize that the

risk of government overreach is greater here than it was in

Times Mirror. In particular, petitioners contend that, in the

search warrant context, the public will eventually have the

chance to assess potential abuses of the search warrant

process because of the availability of suppression motions

and civil actions for violations of constitutional rights. In

petitioners’ view, these kinds of back-end public checks are

not available for AWA technical assistance orders.

We are not taken by petitioners’ efforts to avoid the

logical and persuasive force of Times Mirror. Although

Times Mirror mentioned the availability of after-the-fact

safeguards such as suppression motions, see id. at 1218, this

consideration was not dispositive, but was rather one piece

of our broader “logic” balancing. We did not dwell on the

point long, perhaps because it goes only so far: search

warrants are not invariably the subject of legal challenges,

nor do they invariably lead to prosecutions.

18 FORBES MEDIA LLC V. UNITED STATES

Regardless, the notion that technical assistance

proceedings will forever go unchallenged or unnoticed

absent a constitutional right of access is overstated.

Petitioners themselves assert that there today exists a robust

public debate over these investigatory devices. The

government acknowledges that AWA technical assistance

orders may still be subject to challenge through different

legal pathways, such as by the suspects themselves or by

entities like Sabre, who receive the AWA orders. Cf. United

States v. Mountain States Tel. & Telegraph Co., 616 F.2d

1122, 1132–33 (9th Cir. 1980) (“[W]e believe that a

telephone company whose cooperation in electronic

surveillance is sought should be afforded reasonable notice

and an opportunity to be heard prior to the entry of any order

compelling its assistance.”). Petitioners and others also

remain free to raise their concerns with the political

branches, which have the ability to craft more specific rules

that cannot be enacted judicially under the guise of the First

Amendment or the common law. And we reiterate that it

remains a separate question whether presumptive rights of

access would attach to AWA materials once the

government’s criminal investigation ends and the suspect is

apprehended—an issue for a future case.

In short, whatever differences one might posit between

AWA technical assistance proceedings involving active

arrest warrants, on the one hand, and sealed pre-indictment

search warrants, on the other, the differences are not

significant enough to alter the overall “logic” balancing we

performed in Times Mirror. “Logic,” like “experience,” tells

us that there is no qualified First Amendment right of access

to AWA technical assistance proceedings and materials

relating to unexecuted arrest warrants in ongoing criminal

investigations.

FORBES MEDIA LLC V. UNITED STATES 19

B

We turn next to whether the common law confers such a

right. Courts have recognized a common law “right to

inspect and copy public records and documents, including

judicial records and documents.” Nixon v. Warner

Commc’ns, Inc., 435 U.S. 589, 597 & n.7 (1978). The

Supreme Court has emphasized, however, that this right “is

not absolute.” Id. at 598. Under our case law, “[u]nless a

particular court record is one ‘traditionally kept secret,’ a

‘strong presumption in favor of access’ is the starting point.”

Kamakana v. City and Cnty. of Honolulu, 447 F.3d 1172,

1178 (9th Cir. 2006) (quoting Foltz v. State Farm Mut. Auto

Ins. Co., 331 F.3d 1122, 1135 (9th Cir. 2003)) (emphasis

added). When that presumption attaches, the party seeking

to overcome it must point to “compelling reasons”

supporting sealing, supported by specific factual findings.

Id.

As we just noted, however, there is an important “unless”

here: the common law presumption of access does not even

come into play for court records “traditionally kept secret.”

This carve-out is a “term of art” that refers to materials for

which “there is ‘neither a history of access nor an important

public need justifying access.’” Id. at 1184–85 (quoting

Times Mirror, 873 F.2d at 1219; emphasis omitted). Thus,

under the common law, records that have “traditionally been

kept secret for important policy reasons” are “not subject to

the right of public access at all.” Id. at 1178.

Our cases have not been precise in detailing how the First

Amendment and common law rights may differ in scope

once the rights attach, although we have observed that “[t]he

First Amendment is generally understood to provide a

stronger right of access than the common law.” United

20 FORBES MEDIA LLC V. UNITED STATES

States v. Bus. of Custer Battlefield Museum & Store, 658

F.3d 1188, 1197 n.7 (9th Cir. 2011). The question here,

however, is whether the rights attach in the first place. And

our cases indicate that, in considering that threshold

question, the common law, like the First Amendment, turns

on roughly similar considerations of historical tradition and

the risks and benefits of public disclosure. See Kamakana,

447 F.3d at 1184–85.

The paradigmatic examples of records not subject to the

common law right of public access are, once again, “grand

jury transcripts and warrant materials in the midst of a pre-

indictment investigation.” Id. at 1185 (citing Times Mirror,

873 F.2d at 1219). But we have never suggested these are

the only examples. Given the similarities cross-cutting

AWA third-party technical assistance proceedings, grand

jury proceedings, and pre-indictment search warrant

materials, as a matter of analogical reasoning we conclude

that the materials petitioners seek are not within the common

law right of access, either.

As we already explained in the context of the First

Amendment, there is no history of public access to AWA

third-party technical assistance proceedings relating to

active arrest warrants. In a footnote in their opening brief,

petitioners identify several district court cases supposedly

establishing such a tradition in the common law. See United

States v. Burns, 2019 WL 2079832 (M.D.N.C. May 10,

2019); Matter of the United States, 256 F. Supp. 3d 246, 252

(E.D.N.Y. 2017); In re Application of the United States for

an Order Directing a Provider of Commc’n Servs. to

Provide Tech. Assistance, 128 F. Supp. 3d 478, 483–84

(D.P.R. 2015); Application of the United States, 407 F. Supp.

398, 411 (W.D. Mo. 1976).

FORBES MEDIA LLC V. UNITED STATES 21

We do not agree. We doubt that a scattered set of non-

binding trial court orders from other jurisdictions could

demonstrate the required common law tradition of public

access. But in any event, these cases do no such thing.

Burns involved a request to an already convicted defendant

for technical assistance in unlocking his own hard drive.

Burns, 2019 WL 2079832, at *1–5. And the remaining cases

involved courts that declined to issue AWA technical

assistance orders and that did not otherwise disclose

sensitive information relating to active arrest warrants.

These cases do not support a tradition of access to AWA

technical assistance proceedings relating to ongoing

criminal investigations.

Under the common law, petitioners likewise have not

demonstrated an “important public need” justifying

disclosure. Times Mirror, 873 F.2d at 1219. As we

explained in the First Amendment context, disclosure of

AWA technical assistance proceedings while the suspect is

at large and the criminal investigation underway could

compromise criminal investigations and risk exposing

sensitive investigative methods. See id. (explaining that

there was no “important public need” for disclosure under

the common law because “[a]s we explained in our

discussion of appellants’ First Amendment claim, the ends

of justice would be frustrated, not served, if the public were

allowed access to warrant materials in the midst of a

preindictment investigation into suspected criminal

activity”).

Petitioners advance two other interests that they claim

demonstrate an important public need for access to AWA

third-party technical assistance proceedings. Neither

persuades us. First, petitioners argue that disallowing access

to these proceedings “would deny Congress the insight

22 FORBES MEDIA LLC V. UNITED STATES

necessary to craft better-tailored legislation” in this area.

But there is no basis to believe that Congress needs our

assistance on this front. Congress’s ability to obtain

information does not depend on the efforts of private

litigants like petitioners because Congress has its own

“broad” powers to “secure needed information in order to

legislate.” Trump v. Mazars USA, LLP, 140 S. Ct. 2019,

2031 (2020) (citation and quotation marks omitted). It

would not be appropriate for us to fashion a new common

law right of access in service of a coordinate branch’s

alleged need for information when that branch has sufficient

means at its disposal for obtaining the information it needs.

Second, petitioners maintain that nondisclosure of AWA

technical assistance materials will “cut short public debate

on the difficult, controversial legal questions

characteristically presented in this context.” This is

essentially a reprise of the argument we rejected above,

namely, that we should recognize a presumptive right of

access because greater transparency can act as a check on

government power. We again do not doubt this potential

benefit of disclosure. But as in Times Mirror, we simply

conclude that it is “more than outweighed by the damage to

the criminal investigatory process” that would result. Times

Mirror, 873 F.2d at 1215; see also Index Newspapers LLC,

766 F.3d at 1087 (“[I]t is well established that the harm

caused by disclosure of certain judicial records more than

outweighs any benefit caused by such disclosure.”). And in

this case, the notion that greater disclosure is critical for

public debate is tempered by petitioners’ own representation

that there already exists “a wide-ranging public debate on the

legitimate scope of court-ordered technical assistance.”

FORBES MEDIA LLC V. UNITED STATES 23

C

Finally, and regardless of whether the argument is

advanced under the common law, the First Amendment, or

both, we reject petitioners’ position that the district courts

below should have analyzed the right of public access

question by focusing on the types of documents petitioners

seek (motions, orders, etc.) rather than the nature of the

AWA proceedings of which the documents are a part.

Petitioners maintain, in other words, that we should ask

simply whether certain categories of court documents are

usually publicly available, and, if so, treat them as falling

within a presumptive right of access.

Petitioners’ narrow focus on categories of documents is

not correct. We have never held that in making the threshold

right of public access determination, courts should consider

the categories of documents sought abstracted from the

proceedings in which they were generated. To the contrary,

when we considered whether there was a right of public

access to pre-indictment search warrant materials, we

evaluated the nature of the proceeding itself. See Times

Mirror, 873 F.2d at 1213 (“[T]he public has no right of

access to a particular proceeding without first establishing

that the benefits of opening the proceeding outweigh the

costs to the public.”); id. (“We know of no historical

tradition of public access to warrant proceedings.”); id. at

1215 (“[S]earch warrant proceedings, like grand jury

proceedings, require secrecy.”); id. at 1218 (“[W]e hold that

members of the public have no First Amendment right to

attend warrant proceedings, or to obtain the documents

relating to those proceedings, while the investigation is

ongoing but before indictments have been returned.”); see

also, e.g., Oregonian Publ’g Co., 920 F.2d at 1465 (“[W]e

must decide whether the type of proceeding at issue has

24 FORBES MEDIA LLC V. UNITED STATES

traditionally been conducted in an open fashion.”). This is

the same analysis we conducted above.

In advancing their different approach, petitioners rely on

our decision in Index Newspapers. But a closer reading of

that case shows that petitioners’ position lacks foundation.

In Index Newspapers, two witnesses were subpoenaed to

testify before a federal grand jury. 766 F.3d at 1079. They

both filed motions to quash, which were denied. Id. After

the witnesses continued to refuse to testify, the district court

held contempt proceedings. Id. Those portions of the

contempt proceedings that involved disclosure of the grand

jury materials and proceedings were sealed, but the district

court opened the contempt proceedings to the public when

announcing that the witnesses were in contempt and ordering

them confined. Id. A media organization later sought to

unseal the records of the contempt proceedings. Id. at 1080.

The district court concluded that there was “no public right

of access to grand jury proceedings” or “proceedings held

ancillary to grand jury investigations,” but that it would

unseal transcripts from the open portions of the contempt

proceedings. See id at 1080–81.

On appeal, we carefully evaluated the right of access

questions based on the nature of the proceedings themselves.

We held that there was no First Amendment right of access

to “(1) filings and transcripts relating to motions to quash

grand jury subpoenas; (2) the closed portions of contempt

proceedings containing discussion of matters occurring

before the grand jury; or (3) motions to hold a grand jury

witness in contempt.” Id. at 1084–85. We further held that

any common law right to these materials was “outweighed

by the compelling government interest in maintaining grand

jury secrecy.” Id. at 1085. Our analysis turned not on the

categories of individual documents sought or even on the

FORBES MEDIA LLC V. UNITED STATES 25

“particular proceedings” in that case, but on “the class of

proceedings as a whole,” which were integral to an ongoing

grand jury investigation and involved information from that

investigation. Id. at 1086 (emphasis added); see also id. at

1087 (explaining that “[l]ogic dictates that the record of

proceedings concerning motions to quash grand jury

subpoenas should be closed” because there are “several

compelling reasons why grand jury proceedings should be

kept secret”).

We explained that, for important public interest reasons,

grand jury proceedings were traditionally conducted in

secret. Id. at 1084, 1086–87, 1092–93. It followed that

materials relating to a motion to quash grand jury subpoenas

and a government contempt motion—which were ancillary

to an otherwise secret and ongoing grand jury

investigation—were not subject to a right of access either,

lest public access “frustrate criminal investigations.” Id. at

1093 (quoting Times Mirror, 873 F.2d at 1213). This aspect

of Index Newspapers, which focused on the nature of grand

jury proceedings, fully supports the approach that the district

courts followed here.

The same is true of that portion of Index Newspapers

dealing with the contempt proceeding itself, part of which

was conducted openly in district court. In Index

Newspapers, we regarded the open contempt proceeding as

“better resembl[ing] a criminal trial than . . . a grand jury

proceeding.” Id. at 1089 (quoting United States v. Guerro,

693 F.3d 990, 1001 (9th Cir. 2012)). From that crucial

premise, we reasoned that the public may have a qualified

right of access to a contempt hearing transcript “where there

has been a request to make the hearing public, where the

witness does not object, and where the court is satisfied that

opening the hearing will not thwart the grand jury’s

26 FORBES MEDIA LLC V. UNITED STATES

investigation or jeopardize other witnesses or evidence.” Id.

We similarly concluded that “because of the hearings’

similarities to criminal trials,” the orders of contempt and

confinement were also subject to a presumptive right of

public access, “at least when the grand jury witness does not

object and the court determines that the grand jury

investigation will not be compromised.” Id. at 1093.

Properly considered, our analysis of the contempt

proceedings in Index Newspapers did not turn on a formal

typology of documents blind to the proceedings from which

they arose. Instead, we considered the nature of the

proceedings themselves, a task made more challenging

because of the dual nature of the proceedings at issue. In

Index Newspapers, we homed in on the fact that a contempt

proceeding for refusal to testify before a grand jury

effectively straddles the traditional secrecy of grand jury

proceedings and the traditional openness of a criminal trial.

See id. at 1089, 1093. The contempt proceedings, in other

words, drew on and exposed a criminal investigation and

grand jury process, but they involved a criminal prosecution

as well, with resulting detention. In Index Newspapers, this

entangling of traditionally secret and traditionally open

proceedings provided the critical backdrop for how we

analyzed which aspects of the contempt proceedings should

be regarded as presumptively public in nature. Although it

was necessary to discuss the various documents requested in

parsing the dual-nature proceedings, our right of access

analysis remained focused on the nature of the proceedings

and not simply the formal categories of documents at issue. 2

2

Petitioners’ reliance on Index Newspapers as grounds for obtaining

docket sheets is therefore misplaced. In Index Newspapers, we directed

FORBES MEDIA LLC V. UNITED STATES 27

In this case, by contrast, there is no aspect of AWA

technical assistance proceedings that is akin to a criminal

trial or any other traditionally public proceeding. Instead, as

we have explained, AWA technical assistance proceedings

are more analogous to search warrant proceedings during

pre-indictment investigations and grand jury proceedings, as

to which there is no qualified right of public access. See

Times Mirror, 873 F.2d at 1213–16, 1219. Times Mirror is

thus the most relevant precedent here.

For these reasons, we conclude that there is no First

Amendment or common law right of access to AWA

technical assistance proceedings and materials relating to

unexecuted arrest warrants in ongoing criminal

investigations. It is therefore unnecessary for us to decide

whether, even assuming a presumptive right of access,

nondisclosure of these materials was justified. See United

States v. Doe, 870 F.3d 991, 998 (9th Cir. 2017); Kamakana,

447 F.3d at 1178–79.

D

Although we have held that petitioners do not at this time

have a qualified right of access to AWA technical assistance

proceedings, we do not decide whether the analysis would

be different once the suspect is caught and the criminal

investigation concluded. Compare Times Mirror, 873 F.2d

the district court to release docket sheets (with any necessary redactions)

only because the district court had already unsealed certain information.

See 766 F.3d at 1092. Without the docket sheet, “in practice, the public

had no way of accessing the transcript the court intended to unseal.” Id.

Index Newspapers merely confirms that redacted docket sheets may be

made available when a qualified right of public access otherwise

attaches; it does not create such a qualified right for docket sheets or for

any other specific type of record.

28 FORBES MEDIA LLC V. UNITED STATES

at 1211 (holding that “members of the public have no right

of access to search warrant materials while a pre-indictment

investigation is under way,” but reserving “whether the

public has a First Amendment right of access to warrant

materials after an investigation is concluded or after

indictments have been returned”), with Business of Custer

Battlefield Museum & Store, 658 F.3d at 1192–94

(recognizing a qualified right of public access to search

warrant materials after the criminal investigation has been

terminated).

As we noted earlier, the district court in the Northern

District of California anticipated this potential distinction

and sua sponte ordered the government to give notice when

its investigation closes or becomes public, so that petitioners

could then file a new application to unseal the AWA

materials in question. The court further ordered the

government in the interim to file annual certifications stating

that its investigation remains ongoing and that the

underlying AWA technical assistance materials remain

sealed. The government did not cross-appeal these aspects

of the Northern District’s orders, and we have no occasion

to consider them.

But picking up on the Northern District’s lead,

petitioners now ask us to impose similar requirements in the

Western District of Washington case. Petitioners further ask

us to preemptively order unsealing once the relevant

criminal investigations end. In the exercise of our discretion,

we decline this request. Petitioners did not seek this relief in

the Western District of Washington. Nor would it be proper

for us to decide a hypothetical future request for unsealing

or to issue blanket rules that transcend the case before us.

FORBES MEDIA LLC V. UNITED STATES 29

We leave to district courts in the first instance the

decision of whether to impose reporting requirements akin

to those that the Northern District of California adopted. The

government—which at oral argument expressed some

receptivity to the Northern District’s approach—may wish

to consider adopting its own policies in this area. And in all

events, we leave to future courts resolution of the question

whether any or all portions of AWA technical assistance

proceeding materials fall within a presumptive right of

public access once an arrest warrant is executed and a

criminal investigation concluded.

III

We briefly address post-argument developments

involving related litigation. As we explained above, in the

inadvertently unsealed S.D. Cal. application that Brewster

located, the government referenced prior AWA orders to

Sabre issued not only in the Northern District of California

and Western District of Washington, but also in the Eastern

District of Virginia and Western District of Pennsylvania.

Petitioners sought unsealing in those other courts, too.

In the Eastern District of Virginia case, United States v.

Burkov, No. 1:15-cr-00245 (E.D. Va. Apr. 20, 2022), Dkt.

86, the government assented to the disclosure of certain

AWA materials because there, the suspect had been

apprehended, the investigation completed, and the criminal

proceedings closed. In Burkov, the government stated that

although it “does not believe that the entry of a final

judgment and the defendant’s release from imprisonment

will always be dispositive as to whether unsealing AWA

materials is appropriate,” “on the facts of this case, the

government believes that sealing is no longer necessary.”

Although petitioners try to fashion this into a grand

30 FORBES MEDIA LLC V. UNITED STATES

concession, we think the government’s position in Burkov

proves little here other than that the considerations may well

be different when the suspect is arrested and the

investigation complete. That is the same question we

reserved above.

The Western District of Pennsylvania case, like the cases

before us, involved AWA technical assistance proceedings

involving Sabre relating to an unexecuted arrest warrant, in

which the criminal investigation was still ongoing. See In re

Application of Forbes Media LLC, 2022 WL 17369017, at

*9 (W.D. Pa. Dec. 2, 2022). Brewster and Forbes moved to

unseal the same types of AWA materials they sought here.

On December 2, 2022, in an unpublished decision, the

Western District of Pennsylvania granted petitioners’

request in relevant part.

Without reaching the First Amendment question, the

court found that the materials should be disclosed under the

common law right of access. Id. at *1 & n.2. In particular,

the Western District of Pennsylvania analyzed the

documents by formal category and concluded that they fell

within the common law right, resulting in a presumption of

access that the government had not overcome. Id. at *4–10.

The court acknowledged that courts in the Northern District

of California and Western District of Washington—in the

cases before us—had ruled differently. Id. at *3. But the

Western District of Pennsylvania perceived a difference

between Third Circuit and Ninth Circuit law, asserting that

the Third Circuit had yet to hold, as we held in Times Mirror,

that pre-indictment search warrant materials should be

treated like grand jury materials. Id. at *3 & n.4. The

Western District of Pennsylvania thus ordered the release of

the requested AWA materials, with redactions to conceal the

FORBES MEDIA LLC V. UNITED STATES 31

identity of the suspect and the particulars of the criminal

investigation. Id. at *1, 10.

After it ruled on the specific redactions, the court in the

Western District of Pennsylvania gave the government

fourteen days to seek a stay of its ruling in either the district

court or the Third Circuit. Id. at *11. The government did

not seek a stay. The redacted AWA materials were then

released. They were filed publicly with our court in late

December 2022, after oral argument in this case.

Without broaching the issue of whether there is any

material difference between Third and Ninth Circuit law

governing the common law right of access, it is sufficient to

note that, as our analysis above would indicate, we

respectfully disagree with the Western District of

Pennsylvania’s decision. That court improperly focused on

the generic categories of documents requested, without fully

considering the nature of the AWA technical assistance

proceedings in which those documents were generated.

Such an approach is not consistent with our precedents or

with the basic principles underlying this area of law.

In post-argument letters, petitioners have suggested that

because it failed to seek a stay of the Western District of

Pennsylvania ruling, the government should be treated as

having acquiesced in the release of AWA materials in the

parallel cases before us involving the same petitioners, at

least to the extent of the materials ordered released in

Pennsylvania. We express no views on whether doctrines

such as waiver or forfeiture could apply in these

circumstances based on the government’s decision not to

seek a stay of the Western District of Pennsylvania ruling.

We have only a limited record concerning the proceedings

in the Western District of Pennsylvania, and the district

32 FORBES MEDIA LLC V. UNITED STATES

courts in the two cases before us have not had opportunity to

consider this issue, which arose some months after this

appeal was argued. Petitioners remain free to attempt to

raise this issue in the district courts, as appropriate. See Fed.

R. Civ. P. 60. But recent developments in the Western

District of Pennsylvania do not undermine the district courts’

decisions here based on the record that was before them, or

our legal determination on the qualified right of access

questions.

Under these circumstances, and for the reasons we have

given, the judgments of the district courts are

AFFIRMED.