Update: On July 22, 2020, the U.S. Court of Appeals for the Ninth Circuit affirmed the district court’s denial of the motions to unseal in Washington Post v. DOJ and ACLU et al. v. DOJ. The Court held that there is no First Amendment right of access to the materials. In addition, the Court declined to consider whether there is a separate common law right of access to the documents “because any presumption in favor of access would be outweighed by a compelling government interest in maintaining secrecy in an ongoing investigation.”
The Reporters Committee and 23 media organizations filed amicus briefs in two related cases before the 9th Circuit, Washington Post v. Department of Justice (No. 19-15473) and ACLU et al. v. Department of Justice (No. 19-15472). The cases concern motions to unseal a contempt proceeding that the DOJ reportedly brought against Facebook to compel it to comply with a technical assistance order to allow the government to carry out a wiretap of certain voice communications made over Facebook Messenger. The DOJ sought to hold Facebook in contempt for refusing to comply with the order, but the district court denied the contempt motion. The entirety of the contempt proceedings are under seal, but were reported on by the press. The amicus briefs support the appeals of the Washington Post and the ACLU, EFF, and Riana Pfefferkorn of the denial of their motions to unseal certain judicial records in the contempt proceeding. The amicus briefs argue that the First Amendment right of access applies to the materials the appellants seek, which are judicial records from a contempt proceeding, not wiretap materials. The amicus briefs also highlight the use of encrypted communications by journalists and sources and argues that the public, and journalists in particular, have a powerful interest in understand the legal arguments the government advances and courts accept or reject regarding attempts to circumvent encryption.