Wednesday, August 12, 2009

New York Times cannot get its hands on the Spitzer wiretap application

The New York Times wants the sealed wiretap applications relating to the investigation into the prostitution ring formerly patronized by Gov. Eliot Spitzer. The Times can't have them, the Court of Appeals has ruled.

The case is In the Matter of the Application of the New York Times Company to Unseal Wiretap & Search Warrant Materials, decided on August 7. Spitzer resigned his office a few days after the Times reported that he was a client of the Emperor's Club. All of this made for great copy, as they say in the newspaper business. But a sex scandal is the gift that keeps on giving. The story is not over. Since you need a court order to wiretap phone conversations, the follow-up story is: what do the wiretap applications say?

Since cellphone wiretaps in connection with the prostitution ring must tell quite a story, the Times wanted to see the government's wiretap and search warrant applications. Judge Rakoff ruled in the newspaper's favor, but the Court of Appeals (Cabranes, Hall and Winter) reverses. This case pits the First Amendment against a 1968 law which governs the disclosure of wiretap applications and related documents under a "good cause" standard.

Congress in 1968 enacted the Omnibus Crime Control and Safe Streets Act, which says that wiretap applications are sealed by court order, but that they can be disclosed for "good cause." This case concerns the meaning of "good cause." The Supreme Court has never interpreted the "good cause" standard, but the Court of Appeals did, in 1984, ruling that good cause exists when the person trying to review the materials was an "aggrieved person," i.e., he has to show that he was "a party to any intercepted wire or oral communication or a person against whom the interception was directed." In other words, if you were wiretapped, you are an "aggrieved person."

The 1968 law -- also known as Title III -- creates a strong presumption against public disclosure of the wiretap applications. This is because the Supreme Court in 1967 (United States v. Katz, 389 U.S. 347) emphasized privacy rights in this context. What this means for the New York Times is that it cannot show good cause for the records. The Second Circuit reasons, "It is irrelevant for the purposes of Title III that the Times is a newspaper investigating a matter of public importance. ... the Times does not suggest, much less show, that it is an 'aggrieved person' within the express terms of the statute -- that is, ... the Times does not claim to be 'a party to any intercepted wire or oral communication or a person against whom the interception was directed.'"

What about the First Amendment right of access to wiretap applications? Is there any such right? The Court of Appeals takes up this issue also. The Times argues that these materials are comparable to documents in civil cases which are subject to the public's constitutional right to inspect judicial records. The newspaper also argues that wiretap applications "are merely judicial records that, like search warrants or docket sheets, have been historically open to public access." It also argues that it needs to monitor the government's intrusions on personal privacy and the judicial role "in acquiescing to the government's requests."

These are not bad arguments. Hey, the public has a right to know what really happened with these wiretaps which led to the resignation of a governor with a bright political future, right? Wrong. While the public has the right to gain access to judicial records that have historically been open to the press and general public, wiretap applications are a creation of the 1968 wiretapping law, and so therefore there is no historic right of access to them. The Court adds, "the Times does not present a good reason why its preferred public policy -- monitoring the government's use of wiretaps and potential prosecutions of public officials -- is more compelling than Congress's apparent concern for confidentiality and privacy, which are reflected in the text of Title III and its legislative history."

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