While the government is actively conducting a criminal investigation and pursuing fugitives, the media has neither a First Amendment right, nor a traditional public access right, to obtain sealed records. In a case clarifying the vital issues involved in the All Writs Act (AWA), which gives federal courts the power to order private parties to help law enforcement execute arrest warrants, an appellate court has held that the media cannot obtain sealed FBI records because the government has a compelling interest in their non-disclosure.

The plaintiff in this case is Thomas Brewster, a journalist and associate editor at Forbes magazine who covers surveillance, security and privacy issues. In March 2020, he located an “unsealed” technical assistance order in which the FBI asked an online travel-booking technology company named Sabre to provide it with six months of technical assistance. The Bureau asked for Sabre’s help to aid its investigation into a fugitive who was the subject of an active warrant.

When he learned of the arrangement between Sabre and the FBI, Brewster wrote an article for Forbes entitled “The FBI Is Secretly Using a $2 Billion Travel Company As A Global Surveillance Tool.” In his article, he not only named the fugitive but also provided a link to another article that gave additional personal information about the suspect, including his foreign address and passport number.

A unanimous ruling by a three-justice panel of the Ninth Circuit Court of Appeals affirmed the ruling of Presiding District Judge Ricardo S. Martinez of the United States District Court for the Western District of Washington on March 13 that denied Forbes’ motion to unseal the documents. The Ninth Circuit had also been asked to review a similar ruling by the Northern District of California, so the appellate court consolidated the two cases.

An opinion written by Circuit Judge Daniel A. Bress stressed that AWA orders do “raise vital issues of public concern,” and he conceded that the public has an interest in “knowing how AWA orders are used to enlist private companies to assist in criminal investigations.” However, he said that “public interest” and “public access” are not the same thing. He concluded that Forbes’ requests for access were properly denied because allowing the magazine to access FBI documents would not “adequately protect the government’s interests in ensuring that active criminal investigations are not jeopardized.”

Bress’ opinion began with a lengthy explanation of the AWA that originated in the Judiciary Act of 1789. He recounted that federal courts have traditionally been allowed to help government agencies enlist private parties to assist them in executing arrest warrants. He called these warrants essential tools in the “proper administration of justice.”

He then turned to an extensive discourse on the First Amendment and its limitations, reasoning that freedom of the press is not “an all-access pass to any court proceeding or court record.” He clarified, for example, that the press is not allowed in jury rooms or grand juries and does not have access to pre-indictment search warrant proceedings. Bress explained that judges often use an “experience and logic” test to guide access decisions when the media asks for sealed documents.

He said that Forbes provided no record of a “historic tradition of public access to proceedings and materials under the AWA” that sought to obtain technical assistance from third parties when they were executing arrest warrants.” He compared AWA records to these other proceedings that properly denied media access and concluded that the FBI in this case is entitled to the “same confidentiality accorded other aspects of criminal investigation(s).”

Turning from experience to logic, Bress wrote “some government operations would be totally frustrated if conducted openly,” thus if “harm…outweighs the benefit of disclosure,” public access would not play a significant positive role. Here, when assuring the proper functioning of AWA technical assistance proceedings involving outstanding arrest warrants, he concluded that the documents must remain sealed. He said disclosure might “expose sensitive law-enforcement” operations. He also said that a declaration from an FBI agent involved in the case was “persuasive” and would “hinder, not facilitate” criminal investigations by the government.

From the First Amendment, Bress turned to the common law public right of access. He again began with history, summarizing that “the common law presumption of access does not even come into play for court records “traditionally kept secret.”

There has always been a delicate balance between the public’s right to know and the government’s right to secrecy. Even though Forbes and Brewster lost, their efforts to uphold the public’s right to know should be applauded. The media should never back down from its role in making the government prove when the right to know is not as crucial as the government’s right to secrecy.