In re application of Forbes Media LLC and Thomas Brewster to unseal court records (PA)
Case Number: 21-mc-00052
Court: U.S. District Court for the Western District of Pennsylvania
Clients: Forbes Media LLC, Thomas Brewster
Application to Unseal Filed: Jan. 25, 2021
Background: The federal government has long used the All Writs Act to compel private companies to assist law enforcement investigations, though rarely without controversy. In one high-profile example, the government cited the 232-year-old law in its attempt to force Apple to unlock an iPhone owned by the shooter in the 2015 San Bernardino terrorist attack. While that request was litigated in open court, many such applications for “technical assistance” are filed and granted in secret.
Recently, as Forbes Associate Editor Thomas Brewster first reported, the All Writs Act has been used to track suspects by harnessing mammoth, billion-dollar private travel databases in real-time. These databases have records on everything from airline flights to hotel reservations. But their use has concerned legal experts, who say that the government’s application of the law could set a dangerous precedent.
Recent orders and applications to harness these databases have remained under seal in three federal district courts. On behalf of Forbes and Brewster, Reporters Committee attorneys have requested that the U.S. District Court for the Western District of Pennsylvania unseal one such order, arguing that the press and public have a constitutional and common-law right to access the order and the government’s application for it. (Reporters Committee attorneys have also filed applications to unseal similar orders in federal courts in California and Washington.)
Quote: “The sealed [All Writs Act] materials sought by Applicants here are of particular public interest in light of the weighty constitutional and policy interest implicated by location tracking. … [The disclosure of location records] can burden a broad range of First and Fourth Amendment values, including reporter-source confidentiality.”
Update: On Dec. 2, 2022, the U.S. District Court for the Western District of Pennsylvania ruled in favor of Forbes and Brewster. The court held that a strong common law presumption of access attaches to All Writs Act orders and that the government’s asserted law enforcement interests could justify only “limited redactions” to avoid identifying the particular individual targeted by the order. The U.S. Court of Appeals for the Ninth Circuit reached the opposite result in a March 2023 decision in a companion case.
Filings:
2021-01-25: Application to unseal court records
2021-01-25: Memorandum of points and authorities in support of application to unseal court records
2021-02-23: Reply in support of application to unseal court records
2022-12-02: Opinion
2022-12-02: Order