Wiretaps

Though not involved in the Le case, wiretaps materials also are often sought by the press in other criminal cases. Wiretaps, whether made by state or federal authorities, are controlled by Title III of the Federal Omnibus Crime Control and Safe Streets Act of 1968 (often called Title III). Congress enacted Title III with the intent of “protecting the privacy of wire and oral communications,” including from law enforcement wiretaps.

Title III thus provides that applications for wiretaps and orders allowing them must be sealed by the judge, and that “such applications and orders shall be disclosed only upon a showing of good cause before a judge of competent jurisdiction.” It also makes it a crime to disclose wiretap materials — such as transcripts, summaries, and logs — that were obtained in violation of the law.

Defendants or prosecutors sometimes claim that Title III flatly prohibits courts from releasing information obtained from wiretaps. But, as one federal appellate court noted, “Title III creates no independent bar to the public’s right of access to judicial materials with respect to wiretap materials legally intercepted and admitted into evidence pursuant to the statute.” (U.S. v. Rosenthal). Indeed, another court found that while wiretap recordings may be exempt from disclosure under the Freedom of Information Act, they still must be released if they have been “introduced into evidence and played in open court during a public criminal trial.” (Cottone v. Reno).

Title III and the First Amendment.

Once wiretap materials become part of the court record, most courts have concluded that the statute must bow to a constitutional presumption of access to court documents. In a 1987 New York case, for example, several press groups asked for access to wiretap materials filed in connection with a motion to suppress evidence in the highly publicized corruption prosecution which included charges against Mario Biaggi, a Democratic U.S. congressman from the Bronx. The materials sought included the government’s wiretap application, several supporting affidavits, the order permitting a wiretap, and excerpts from that wiretap and a related one. (In re New York Times Co.).

The defendants argued “that Title III required continued sealing of the motion papers unless appellants could show good cause why the papers should be unsealed.” Despite Title III, however, the Second Circuit found that the First Amendment presumption of access applies “to written documents submitted in connection with judicial proceedings that themselves implicate the right of access.”

Thus, the court concluded, “where a qualified First Amendment right of access exists, it is not enough simply to cite Title III. Obviously, a statute cannot override a constitutional right.”

Though the access right is not absolute, the court noted that its “review of the sealed materials indicates that the wholesale sealing of the motion papers was more extensive than necessary to protect defendants’ fair trial rights, their privacy interests and the privacy interests of third persons.” It added that to protect any privacy interests, redaction of names and other materials would be more appropriate than wholesale sealing of the papers.

The balance of First Amendment access interest against privacy and fair trial rights went the other way in a case heard by the U.S. Court of Appeals in Boston (1st Cir.) in 1984. In that case, the court agreed “that the First Amendment right of access does extend to bail hearings and to documents filed in support of the parties’ arguments at those hearings,” even though they contained wiretap information.

But it added that the court had not yet decided whether the wiretap materials discussed at the bail hearing were obtained lawfully. Because Title III prohibits dissemination of unlawful wiretaps, the court looked to the fair trial and privacy rights of the defendants and concluded that the trial court was “correct in concluding that closure and impoundment are necessary to protect defendants’ privacy and fair trial rights until defendants have had a fair opportunity to challenge the legality of the Title III material.” (In re Globe Newspaper Co.).

At least one court, however, has found that Title III bars the release of wiretap transcripts that were presented in connection with a suppression motion. The U.S. Court of Appeals in Chicago (7th Cir.) found that Title III permits disclosure only under the specific circumstances given in the statute — for example, it allows disclosure during court testimony. The court, concluding that “Title III implies that what is not permitted is forbidden,” thus refused to release wiretap evidence that was submitted to support a motion to suppress. (Dorfman I).

This conclusion was rejected by another appellate court, which noted that “we agree that Title III generates no right of access, but it is a non-sequitur to conclude the obverse: that Congress intended in [Title III], which relates solely to use in law-enforcement activities and judicial proceedings, to forbid public access by any other means on any other occasion.” (In re Application of Newsday, Inc.).

In any case, the Seventh Circuit, in an unpublished opinion, eventually allowed press access to the wiretap recordings in the Dorfman case once they were presented in open court. (Dorfman II).

Wiretap materials in other court records.

Wiretap information is sometimes included in other court filings, such as warrant applications and pretrial motions. The Newsday court thus concluded that “the presence of material derived from intercepted communications in the warrant application does not change its status as a public document subject to a common law right of access, although the fact that the application contains such material may require careful review by a judge before the papers are unsealed.” (In re Application of Newsday, Inc..).

At the same time, the fact that wiretap materials were included in a court document does not make Title III considerations disappear. In one case, for example, prosecutors attached an affidavit to a search warrant application that included information collected from court-ordered wiretaps. The court, citing decisions from another appellate court, rejected the idea “that once wiretap information is used in search warrant affidavits, it is no longer subject to Title III’s restrictions upon its use and disclosure.”

Thus, as with any wiretap materials that are incorporated into court documents subject to a presumption of access, “what is required is a careful balancing of the public’s interest in access against the individual’s privacy interests.” In that case, the court did not disclose the materials because the government had not yet secured an indictment. But the court added that it did not mean to suggest that the media could not seek disclosure, “after indictment, of the wiretap information contained in the search warrant materials or other judicial documents.” (Certain Interested Individuals v. Pulitzer).

In sum, most courts have found that wiretap materials, once discussed in testimony or filed in court, become court documents subject to a presumption of openness. Though the privacy interests that let to Title III are generally weighed against the public interest in access to wiretap materials (along with defendants’ fair trial rights), most courts have rejected the idea that Title III bars the release of court documents that contain wiretap materials.