"The Court Denies the Government's Attempt to Muzzle the Court"

"Unsealing the May 6 Order is essential for the public to see the government's overreach in searching cellphones without probable cause and [is essential for] publishing precedent as courts unpack future such requests."

From the introduction and conclusion of a decision by Magistrate Judge Zia Faruqui (D.D.C.) in In re: Search of One Device and Two Individuals (decided last week but just released Wednesday):

The government has moved to seal seemingly forever an order of the Court. But this is the Court's order, not the Executive's order. So the Court, not the Executive, decides unsealing. For the reasons stated below, the Court DENIES the government's attempt to muzzle the Court….

No secret courts. This means no forever sealed judicial decisions—including warrants—as they are the foundation for secret courts. Without visibility, the public cannot hold courts or the government accountable. The Framers knew this. Thomas Jefferson said "wherever the people are well informed they can be trusted with their own government; that whenever things get so far wrong as to attract their notice, they may be relied on to set them to rights." Transparency is foundational to what makes America great.

Transparency requires courts to timely unseal—with redactions if needed—every judicial decision, including search warrants. Courts abdicate their duty to ensure transparency if they only monitor unsealing in high profile warrants.

The largely unsealed May 6 order appears to be here; here's an excerpt from the long May 29 decision justifying the unsealing (with redaction) of the order:

"It is clear that the courts of this country recognize a general right to inspect and copy public records and documents, including judicial records and documents." "The public's right of access to judicial records derives from two independent sources: the common law and the First Amendment." …

"… [A] common law presumption of access [attaches to the order] …, which the government can rebut only by showing competing interests that compel a conclusion that justice requires maintaining a seal. The Hubbard factors govern this analysis." There are six Hubbard factors that the Court must consider:

(1) the need for public access to the documents at issue; (2) the extent of previous public access to the documents; (3) the fact that someone has objected to disclosure, and the identity of that person; (4) the strength of any property and privacy interests asserted; (5) the possibility of prejudice to those opposing disclosure; and (6) the purposes for which the documents were introduced during the judicial proceedings.

As to the first factor, there is a great need for public access. "Access to [judicial decisions about] search warrants and affidavits of probable cause can reveal how the judicial process is conducted. The procedures employed by the prosecutor and law enforcement can be evaluated. Access may also disclose whether the judge is acting as a neutral magistrate [judge]." "And the issuance of public opinions is core 'to the transparency of the court's decisionmaking process.'" "Indeed, since at least the time of Edward III, judicial decisions have been held open for public inspection." Unsealing the May 6 Order is essential for the public to see the government's overreach in searching cellphones without probable cause and publishing precedent as courts unpack future such requests. Indeed, at least one magistrate judge in this district has already refused to sign a similar warrant based on the May 6 Order.

The government argues—without explanation—there is "no stated need" for public access to the May 6 Order. Yet, the stated need could not be more important: public confidence in "the rule of law." …

The government's argument is focused on the potential harm to its ongoing investigation. At the outset, it bears noting that this case did not involve a sensitive, lengthy investigation. Rather, it involved a chase, a tackle, and an arrest. Post-arrest, one completed cheek swab and failed attempts to search a phone and take another cheek swab.

The government's only alleged harm to the ongoing investigation from unsealing is that it would alert [Redacted] of the government's desire to search [Redacted] phone, which in turn might lead [Redacted] to take steps to "purge evidence stored on the cloud." Specifically, they imagine that [Redacted] will illegally obtain a phone at the jail, find a co-conspirator to obstruct justice with, provide [Redacted] login credentials to that co-conspirator, and then direct the co-conspirator to remotely wipe incriminating information. There is no basis in fact to support this multi-step, multi-party paranoid fever dream.

{Given how weak the government's argument of harm to the investigation is, the Court cannot help but ask if there are other reasons animating its sealing request. Perhaps the government is embarrassed about trying to forcibly search an innocent [Redacted] or having a warrant rejected given how rare that is? But "even if preventing embarrassment may sometimes justify access restrictions, there is plainly no justification for such restrictions here."}

First, this was an arrest-generated case of a single defendant with no co-conspirators. It is hard to believe [Redacted] has on-demand criminal co-conspirators ready to obstruct justice. Second, neither [Redacted] nor [Redacted] public defender live under a rock. Presumably, they both know the government almost always attempts to search phones of defendants. So, if [Redacted] was planning to wipe [Redacted] phone remotely, [Redacted] would have done so when [Redacted] phone was seized upon [Redacted] arrest, not weeks later. Third, there is no probable cause to believe that there is incriminating information on the phone. Meaning the government would lose nothing from a remote wipe.

Finally, "law enforcement is not without specific means to address the threat. Remote wiping can be fully prevented by disconnecting a phone from the network." This can be accomplished in several ways. In some cases, officers may simply turn the phone off or remove its battery. Alternatively, the government could place the phone in a Faraday bag, which would shield the device from all electromagnetic radiation, such as a phone network, Bluetooth, or a wireless internet signal. The government could also "mirror" (copy) the phone's contents, to be used as a back-up should the phone be remotely wiped. And the government could issue a preservation letter pursuant to section 2703(f) of the SCA to compel a provider to preserve [Redacted] cloud account(s). Presumably, the much-ballyhooed agent's training and experience has covered these elementary tasks for evidence preservation.

Regardless, redactions check any harm to the investigation. Redactions conceal sensitive facts and sources/methods used in an investigation. But the government has fallen back into its anti-redaxer habits. See In re USA for 2703(d) Ord. for Three Email Accts. Serviced by [Redacted] for Investigation of Violation of 18 U.S.C. §§ 641 & 793, 548 F. Supp. 3d 31, 33 (D.D.C. 2021). The government could have redacted [Redacted]r identifying facts, and details of the requested search. But for unknown or untoward reasons, the government refuses to redact, choosing instead to keep everything under seal. That is not an option….

The government contends that courts must be highly deferential to the government's determination that unsealing would impede its investigation. However, their argument relies on another mischaracterized case: Times Mirror Co. v. United States, 873 F.2d 1210, 1214 (9th Cir. 1989). Times Mirror dealt with sealing of warrant materials relating to an ongoing "preindictment investigation." "[T]he Ninth Circuit specifically left open the question [of] whether the public has a right of access to warrant materials … after indictments have been returned." United States v. Inzunza, 303 F. Supp. 2d 1041, 1046 (S.D. Cal. 2004) (internal quotation marks omitted) (quoting Times Mirror Co., 873 F.2d at 1211). Alternatively, the Fifth Circuit includes "preindictment search warrant materials" as judicial records courts may unseal. United States v. Sealed Search Warrants, 868 F.3d 385, 390 (5th Cir. 2017) ("the decision of whether access should be granted [to pre-indictment search warrant materials] must be left to the discretion of the district courts"). Regardless, neither strand of cases suggest that post-indictment search warrants are immunized from unsealing.

This case has been indicted. On the secrecy spectrum, the end of an investigation is a significant benchmark; but so too are the return of a public indictment and the arrest of a defendant. In fact, there is a recent trend among courts finding that traditional justifications for sealing no longer apply post-indictment because of the "obvious interest in knowing that proper procedures have been followed" and need for "[p]ublic scrutiny of the search warrant process."

"Public access to these records could play a significant and positive role in the functioning of the particular [criminal justice] process in question." The government's secrecy interests must ultimately be weighed against public's interest in being "armed with enough information to know what questions to ask" of the justice system. Additionally, unsealing is often required post-indictment as the government must disclose search warrant materials in the discovery process, particularly to allow for motions to suppress. Considering all of this, this factor weighs moderately in favor of unsealing….

The judge also concludes that the First Amendment requires unsealing; there's a lot going on in that section, but here's a short excerpt:

The Court next turns to the government's alleged compelling interest in keeping the materials sealed and whether sealing is narrowly tailored to serve that interest. The government identifies a compelling interest: maintaining the integrity of its purported ongoing investigation. But the government cannot short circuit the public's First Amendment rights by simply throwing up its hands and shouting "ongoing investigation." The narrow tailoring of "that interest can be accomplished by simply redacting [sensitive information], which the Court [already] direct[ed] the government to do in this case." For the reasons discussed at length above, including that: 1) [Redacted] is incarcerated; 2) the government has seized [Redacted] DNA; 3) there is no risk of spoliation of the phone or related cloud accounts; and 4) the Court has given the government the chance to redact documents, the government has failed to overcome a First Amendment right of access.

And the judge rejects the government's request of a stay of its unsealing order; again, a short excerpt:

The problems with the government's theory of harm does not stop at a lack of proof. Their theory frames a near-impossible scenario as a certain one. The May 6 Order deals with three pieces of evidence: [Redacted] phone / cloud accounts; [Redacted] DNA (via buccal swab); and Ms. [Redacted] DNA (via buccal swab). The sheer absurdity of the destruction of the phone / cloud accounts is addressed above. The government has already obtained [Redacted] DNA.

Finally, the destruction of [Redacted] DNA veers on bad science-fiction. The chance that [Redacted] could manipulate the DNA in [Redacted]eek cells is close to, if not, zero. Though gene-editing techniques certainly exist, they are highly regulated, technical, and expensive. And it is ludicrous to suggest that [Redacted]ll become a fugitive to escape a cheek swab to connect [Redacted] to a gun[Redacted] legally purchased, licensed, and possessed. "[T]he allegations made by [the government] are so speculative and hypothetical that it would be difficult to conclude that irreparable injury would occur even if the allegations were supported by evidence. The fact that [the government has] not attempted to provide any substantiation is a clear abuse of this court's time and resources."

Moreover, … [t]he government cannot in good conscience allege imminent, irreparable injury [that would justify a stay] when the Court has offered an avenue by which it can avoid the alleged injury altogether. Indeed, the government is free to redact as much of the May 6 Order as it needs—although, the Court will consider the possibility of over-redaction should the issue arise. Thus, the second factor weighs strongly against staying publication of the Order….

The government proffers that "because no party is seeking disclosure of the Order, there is no specific movant who would be harmed by staying publication." "But how do you petition the court to open a case if you don't know it exists?" Public inaction must be viewed against this backdrop. To then justify sealing by public inaction is victim blaming….

"The public interest is a uniquely important consideration in evaluating a request for" a stay…. Public access to criminal proceedings provides a "safeguard against the corrupt or overzealous prosecutor," especially, as at this juncture, where there is no jury present…. The government fails to acknowledge, and makes no attempt to dispute, the public interest in access to criminal proceedings.