Julie Hilden

The Denial of the Times's Request for Emperor's Club Wiretap Applications

By JULIE HILDEN


Tuesday, August 18, 2009

On August 7, The New York Times lost an important First Amendment battle, when a three-judge panel of the U.S. Court of Appeals for the Second Circuit ruled that the newspaper had no right to access sealed wiretap applications relating to the investigation of the "Emperor's Club" prostitution ring.

In the case, In Re Application of the New York Times Co., the newspaper argued both that it had made the showing of "good cause" required by statute to access the applications; and that, in any case, it possessed a common law or First Amendment right to such access, superseding any limits that the statute might contain. But the Second Circuit panel rejected both arguments.

Previously, U.S. District Judge Jed Rakoff – known as a brilliant and sometimes maverick jurist – had granted the Times's request for access. (Notably, Rakoff had also awarded the Times an earlier free speech victory, by forcing the Department of Defense to comply with a Freedom of Information Act request regarding documents from Guantanamo Bay that pertained to the treatment of detainees there.)

In this column, I'll argue that it was Judge Rakoff – rather than the government, or the Second Circuit -- who had the better of the First Amendment argument here.

Why the Applications Had Remained Secret, What They Likely Contained, and Why Court Proceedings Would Not Have Revealed Customer Identities

As readers may recall, the "Emperor's Club" was the New York City-based prostitution ring that former New York Governor Elliot Spitzer famously patronized, leading to his downfall. After an investigation, four people – not including Spitzer – were charged with offenses connected to the ring.

All four waived indictment and pled guilty. Not one of them sought any discovery regarding the government's evidence -- including the evidence supporting the wiretap applications that had formed the basis for judges' authorizations of the taps on their cellphones. Accordingly, pursuant to statute, the wiretap applications were kept under seal. Had the criminal process continued, however, the applications naturally would have been unsealed.

Notably, after the first wiretap application was approved, the succeeding applications began to include the inculpatory information that had been procured from the earlier wiretaps. Accordingly, had the Times received the applications, it presumably would have gotten a pretty good idea of the substance of the cellphone conversations that were being tapped as the investigation unfolded – and thus a good picture of the course of the investigation.

When the Times requested the wiretap applications, however, the government refused to release them. Thus, the Times filed suit.

When the newspaper appeared before Judge Rakoff, it agreed that Emperor's Club customers' names could be redacted from the applications. That agreement remained in force during the Second Circuit appeal of Judge Rakoff's ruling granting the Times access to the wiretap applications.

The Statutory Issue

With respect to the statutory issue, the dispute between the parties centered on the meaning of "good cause." The relevant statute allows unsealing of a wiretap application only for "good cause." But what does "good cause" mean, in this particular context?

In defining the phrase, the Second Circuit drew upon its own related precedent. It held that "good cause" requires "a need for the materials"; that only an "aggrieved person" can show good cause in this context; and that an "aggrieved person" must be "a party to any intercepted wire or oral communication or a person against whom the interception was directed."

Plainly, the Times itself did not fit the bill under the Second Circuit's test. Whether or not the newspaper truly had a "need" (as opposed to just a desire) for the materials, which is debatable, it plainly was not a participant in, or a target of, the wiretaps. On this simple basis, the panel held against the Times.

However, there was a problem with the panel's rationale: In limiting the right to unseal the wiretap applications to aggrieved persons, it heavily relied on the privacy rights of those who were wiretapped without their consent. But in this case, it seems very likely that the wiretapped conversations were between customers and targets, or among targets. As noted above, the Times had already agreed to redact customers' names from the wiretap applications. Moreover, four of the targets have pled guilty, which required stating in open court what they had done. These four presumably also were, or will be, sentenced in a public proceeding that will detail their offenses.

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? Even if the statute was driven by a concern for privacy, that concern seems negligible here.

The First Amendment Issue

As noted above, the Times lost on the First Amendment issue here, too. That issue seems likely to go to the Supreme Court eventually, through the vehicle of this case or perhaps a later case.

In this case, the Second Circuit found no basis in "history or logic" – the Supreme Court's yardsticks -- for a First Amendment right of the press to access wiretap applications. Regarding history, the panel looked only to the history of wiretaps themselves – not that of analogous, prior law-enforcement tools. Thus, the panel emphasized, once again, that under the relevant statute and the Second Circuit's tests, unsealing a wiretap application is not easy.

By restricting its inquiry to modern times, however, the panel wrongly conflated the statutory and constitutional issues. Congress is not the main judge of what is constitutional; the courts are. The panel also stacked the deck on the historical inquiry: As a modern creation, the wiretap necessarily will only have a short history to examine. But it can't be the case that simply because a law enforcement technique is new, and Congress has wanted it to be secret, that the First Amendment does not guarantee public or press access to information relating to how it is used.

The panel also pointed out that wiretap application proceedings themselves (as opposed to wiretap applications) are not public. But of course, such proceedings cannot possibly be public, for the investigation is still ongoing when such applications are made, and could be disrupted. Who will continue using their cellphone, when a public proceeding has just authorized it to be tapped? In this case, though, the investigation was long over when the Times sought access to the wiretap applications.

Here, too – as with the statutory inquiry – it seems that the panel failed to grapple with the facts of this particular case. It was not asked to open up criminal investigations to the media, but only to grant the media access to evidence from already-closed investigations. Moreover, the only evidence at issue was evidence that would naturally have been unsealed anyway, except for the happenstance that all four targets opted to plead guilty very early on.

This double standard regarding unsealing not only makes little sense, but creates perverse incentives: Suppose there is a case where the government especially wants to keep its wiretap applications secret – perhaps because it bungled the investigation in embarrassing ways. Then the government may offer the targets quick, too-lenient pleas, or may even drop charges against minor targets who won't plead guilty – all so that the evidence can stay sealed.

Overall, The Times deserved a better appellate decision than this – and, especially, a better accounting on the "logic" prong of the First Amendment inquiry. When a criminal investigation is already over, as was the case here, then surely logic strongly counsels that the evidence be opened up to the media, for journalists' and the public's scrutiny as to whether justice has been done.

If wiretap-application evidence poses specific privacy concerns in a particular case, they can be addressed by redaction or even continued sealing. If unique investigative techniques might be revealed, that too might be cause for redaction or continued sealing. But a simple blanket of silence in this area, irrespective of the facts, cannot be reconciled with the public and media's First Amendment rights.


Julie Hilden, who graduated from Yale Law School, practiced First Amendment law at the D.C. law firm of Williams & Connolly from 1996-99 and has been writing about First Amendment issues for a decade. Hilden, a FindLaw columnist, is also a novelist. In reviewing Hilden's novel, 3, Kirkus Reviews praised Hilden's "rather uncanny abilities," and Counterpunch called it "a must read.... a work of art." Hilden's website, www.juliehilden.com, includes free MP3 and text downloads of the novel's first chapter.

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