New York Federal Criminal Practice Blog
September 15, 2009

Second Circuit Reverses Unsealing of Wiretap Applications in Investigation of Public Official

Does a newspaper have a right of access to wiretap applications that led to the downfall of New York’s governor?  SDNY Judge Rakoff had said yes (see here), but the Second Circuit disagreed in In the Matter of the Application of The New York Times Company to Unseal Wiretap & Search Warrant Materials, 2009 WL 2526486 (2d Cir., August 20, 2009) (Spitzer II).  Presenting a stark contrast to Judge Rakoff’s pro-disclosure decision, the Court reversed his unsealing order, holding that the newspaper was not an “aggrieved person” in order to satisfy Title III’s “good cause” requirement for disclosure, and that it had no First Amendment right of access to the records.  The case is an important (and unfortunately restrictive) one on the right of the press to scrutinize judicial documents, and thus judicial and prosecutorial processes.  It is also an important precedent for those defendants who may want to shield some of the more salacious details of their alleged wrongdoing from public voyeurism.


In lines that beg a key chicken and egg question, the Court states:  “In March 2008, the government charged four people with running a prostitution ring called the ‘Emperor’s Club.’  Soon after, the news media identified Governor Spitzer as a client of the ring; Spitzer resigned his office within days.”  The New York Times sought access to the applications underlying wiretap surveillance in the case, which, may have revealed the origins and motivations behind this unusual federal probe of a high-end escort service involving consenting adults and personal money.  SDNY Judge Rakoff granted the Times’ motion to unseal the applications, concluding that the Times had a common law First Amendment right of access to judicial records that was coextensive with Title III’s good cause requirement for disclosure.  The government appealed, and Elliot Spitzer was permitted to file an amicus brief.  

Title III’s Good Cause Requirement

Under Title III, wiretap applications may only be disclosed “upon a showing of good cause.”  Neither the statute nor the Supreme Court have defined the term or who may invoke it, but in NBC v. DOJ, 735 F.2d 51 (2d Cir. 1984), a case where NBC sought wiretap applications to assist its defense in a libel action, the Court held that the applicant seeking to unseal wiretap applications must be an “aggrieved person.”  It reached this conclusion in part based on a statement in Title III’s legislative history, which gave as an example of “good cause” an aggrieved person’s right to suppress wiretap contents.  In Spitzer II, the Court saw no reason to depart from its analysis in the NBC case.  “It is irrelevant for the purposes of Title III that the Times is a newspaper investigating a matter of public importance.  Like NBC, the Times does not suggest, much less show, that it is an ‘aggrieved person’ within the express terms of the statute – that is, like NBC, 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.’”

First Amendment Right of Access

There is a qualified First Amendment right of access to judicial records in two situations.  One is the “history and logic” situation, where the records have been traditionally open to the press and public, and public access helps the functioning of the process in question.  The other is where the documents have been filed in connection with a judicial proceeding that can be publicly attended.  In Spitzer II, the Court concluded that neither situation applied here.  Wiretap applications have not been historically open to the press and public since their inception in Title III, and “the Times does not present a good reason why its preferred public policy (‘logic’) – monitoring the government’s use of wiretaps and potential prosecutions of public officials – is more compelling than Congress’s concern for confidentiality and privacy.”  As for the “attendance at proceedings” approach, the press and public are not allowed to attend the ex parte, in camera proceedings where wiretap applications are presented to a district judge, and therefore can have no corollory First Amendment right of access to the sealed applications.


This case sets a very high bar for media access to wiretap applications.  It’s hard not to imagine a more compelling reason for public disclosure of the submissions to a judge in support of surveillance than a now closed investigation that led to the resignation of a state governor.  While one can certainly empathize with Mr. Spitzer’s desire to put this humiliating episode behind him, media scrutiny is an important check on the exercise of prosecutorial power, especially the decisions to engage in the kind of highly intrusive surveillance at issue here.  But if access to wiretap applications is limited to “aggrieved persons,” it puts the fox in charge of the proverbial henhouse.  As the Court has acknowledged more than once, prosecutors’ bargaining power is “awesome.”   While there is no indication that their bargaining power was in any way abused in this case, prosecutors nonetheless can use this power, along with their charging discretion, to silence all the people “aggrieved” by wiretapping.

Lawyers: David McCraw and Itai Maytal of The New York Times Company; AUSAs Daniel Stein and Jesse Furman; James Brochin, Marc Falcone and Michelle Hirshman of Paul, Weiss, Rifkind, Wharton & Garrison LLP (Elliot Spitzer)

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