Spitzer wiretap materials off-limits to N.Y. Times

Monday, August 10, 2009

The New York Times does not have a First Amendment right of access to sealed FBI wiretap applications or orders in the prostitution investigation that brought down former Democratic New York Gov. Eliot Spitzer, a federal appeals court panel ruled Aug 7.

In March 2008 the government charged four people with running the Emperor’s Club prostitution ring. Soon after the charges, news-media revelations that Spitzer was a client led to his resignation. The FBI revealed in an affidavit that wiretaps were used in the Emperor’s Club investigation. Information from the applications and the court orders allowing the wiretaps could reveal details about the origins and scope of the investigation.

Federal law requires that wiretap materials be placed under judicial seal. In most cases, the wiretap orders and applications are unsealed during criminal proceedings before such information can be used against a criminal defendant in court. However, the four individuals pleaded guilty in the early stages of the proceedings, so the wiretap applications and orders remained under seal.

The New York Times filed a motion to unseal search-warrant and wiretap applications and orders, claiming a common-law and First Amendment right of access. The government agreed to disclose the search-warrant materials but not the wiretap materials.

In February 2009, U.S. District Judge Jed S. Rakoff granted the Times’ request for the wiretap materials. He ruled that there was a presumption of access under the common law and the First Amendment for judicial records, which included wiretap applications and orders. Rakoff rejected the government’s argument that federal law provided only for release of such materials upon “good cause.”

On appeal, the government pressed its arguments for privacy and confidentiality by emphasizing the language of Title III of the Omnibus Crime Control and Safe Streets Act of 1968. The provision says in part that wiretap “applications made and orders granted under this chapter shall be sealed by the judge” and that such “applications and orders shall be disclosed only upon a showing of good cause before a judge.”

In the Aug. 7 ruling, a unanimous three-judge panel of the 2nd U.S. Circuit Court of Appeals agreed with the government in In Re Application of the New York Times Company to Unseal Wiretap & Search Warrant Materials. (Note: Link above is temporary. See alternative link.

The panel, in an opinion by Judge Jose A. Cabranes, noted that Title III “created a strong presumption against disclosure of the fruits of wiretap applications” and that the legislative history of Title III “revealed a manifest congressional intent that wiretap applications be treated confidentially and clearly negated a presumption in favor of disclosure.”

The language of Title III requires “good cause” for release, and prior 2nd Circuit case law had held such cause could be shown by an “aggrieved person” or someone who had a real need for the information.  According to the prior 2nd Circuit case law, those categories did not include the news media. “It is irrelevant for the purposes of Title III that the Times is a newspaper investigating a matter of public importance,” Cabranes wrote.

The panel then addressed the Times’ argument that both common law and the First Amendment created a qualified right of access that overrode Title III’s requirement of “good cause.” Cabranes applied the two-part “experience and logic test” (sometimes called the “history and logic test”) derived from the U.S. Supreme Court’s decision in Richmond Newspapers v. Virginia (1980), in which the Court ruled that criminal trials generally should remain open to the public.

Under the “experience and logic test,” a particular judicial proceeding can be deemed presumptively open if it has historically been open or logic requires that it be open. However, Cabranes noted that wiretap applications are made to a judge outside of public view and outside of the courtroom in a judge’s chambers. He reasoned that “wiretap applications have not historically been open to the press and the general public.”

Not at issue in this case were the contents of wiretapped conversations involving Spitzer and the Emperor's Club. The FBI revealed excerpts of those conversations in a court affidavit.

The Times said it was disappointed and was reviewing the decision. It said public access to such records would provide “a valuable check on law enforcement agencies and on the courts.”

Spitzer was never charged in connection, but resigned in disgrace in March 2008.

The Associated Press contributed to this article.

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