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2nd Circuit Rebuffs Attempt to Obtain Spitzer Wiretap Data
New York Law Journal
August 10, 2009
The New York Times has lost its bid to obtain wiretap information related to former New York Gov. Eliot Spitzer's involvement in a prostitution ring.
The federal law that permits disclosure of wiretap information on a showing of good cause does not allow disclosure based solely on the news media's interest in publishing the information, the 2nd U.S. Circuit Court of Appeals ruled on Friday.
In a case where the Times sought wiretap information on Spitzer and the Emperor's Club prostitution ring, the circuit agreed with the government that general journalistic interest in the information does not amount to good cause within the meaning of Title III of the Omnibus Crime Control and Safe Streets Act of 1968, 18 U.S.C. §2518(8)(b).
The circuit panel of Judges Ralph K. Winter, Jose A. Cabranes and Peter W. Hall also ruled that the Times did not have a First Amendment right to gain access to wiretap applications and related documents in In the Matter of the Application of the New York Times Co. To Unseal Wiretap & Search Warrant Materials, 09-0854-cv.
The decision overturns a ruling by Southern District of New York Judge Jed S. Rakoff, who granted the Times' application to access sealed wiretap applications in the Emperor's Club investigation.
Four people who either ran or worked for the prostitution ring were charged in the case in March 2008. Once Spitzer was revealed as a client of the ring, he quickly resigned from office, although he was not charged in the case. The four who were charged eventually pleaded guilty.
When the Times applied to Rakoff in December 2008, the government argued that the unsealing of the wiretap materials was prohibited by Title III.
At a hearing on Jan. 27, 2009, the Times agreed the government could redact the names and identifying information of all customers whose names appeared in the materials.
Rakoff, in In re New York Times Co., 600 F.Supp. 2d 504 (S.D.N.Y. 2009), granted the paper's request on Feb. 19, 2009, finding the wiretap applications were "judicial records," and that the press enjoyed a right of access to those records under both common law and the First Amendment that amounted to a "presumption in favor of disclosure."
He found that the presumption was not outweighed by the government's concern about confidentiality because the investigation had been concluded, and that any privacy concerns could be addressed by the redactions.
Finally, the judge said that "there's no reason to believe that Congress intended 'good cause' to be anything other than a synonym for the balancing dictated by the aforementioned constitutional and common law principles."
GOOD CAUSE STANDARD
The circuit disagreed with that analysis Friday in an opinion by Judge Cabranes, who said that the 2nd Circuit concluded 25 years ago that "'good cause' could be found where the applicant seeking to unseal wiretap applications was an 'aggrieved person,' but not upon a lesser showing" in In re National Broadcasting Co. v. U.S. Dept. of Justice, 735 F.2d 51 (1984).
In NBC, he said, the court found a presumption against disclosure of both the fruits of wiretap surveillance and the wiretap applications. The circuit ruled then that NBC was not an "aggrieved person" because, in the words of Title III, it was not "a party to any intercepted wire or oral communication or a person against whom the interception was directed."
Here, Cabranes said, "we see no reason why our analysis in In re NBC that Title III's 'good cause' requirement demands a showing of an 'aggrieved person' should not apply to the instant case. It is irrelevant for the purposes of Title III that the Times is a newspaper investigating a matter of public importance."
Therefore, he said, the Times had failed to show "good cause" for the unsealing of the materials.
The panel then rejected the view that the First Amendment required unsealing.
First, it concluded that "these wiretap applications have not historically been open to the press and the general public."
Second, the circuit said, "there is no question that the public and the press are not permitted to attend the ex parte, in camera proceedings where wiretap applications are presented to the district judge."
A spokeswoman for the Times released a statement saying, "We are obviously disappointed with the result, and we continue to believe that public access to these types of court records would provide a valuable check on law enforcement agencies and on the courts. We are reviewing the decision and have not yet decided whether to seek further review."
Assistant U.S. Attorneys Daniel L. Stein and Jesse M. Furman represented the government.
David E. McCraw and Itai Maytal of the New York Times Company legal department represented the newspaper.
