Last week the United States Court of Appeals for the Fourth Circuit halted an attempt by three individuals involved in the ongoing WikiLeaks investigation to make information about the investigation public. Specifically, the three users sought to unseal the prosecution’s request for a court order requiring Twitter to disclose certain user account information, including the three user’s personal identifying information and account information, as well as all messages they sent and received using the service. The prosecution’s request would have included its reasoning behind why the government suspected the three user’s involvement, and may have included information regarding how the investigation has been operating. The users also moved to unseal any other orders that were issued to other companies demanding similar information be turned over to the government.
The Fourth Circuit analyzed whether the public has a “right of access” to this type of information under either the First Amendment, or common law. For a public right of access to exist under the First Amendment there must be a long tradition of the public accessing that type of information, and that access must play “a significant positive role in the functioning of the particular process.” Balt. Sun Co. v. Goetz, 886 F.2d 60, 64 (4th Cir. 1986). The Fourth Circuit determined that there could not be a First Amendment right of access because public knowledge of SCA orders would “frustrate the government’s operations” as “secrecy is necessary for the proper functioning” of criminal investigations.
Under the common law there is a presumption that the public has a right to access judicial records, such as SCA orders and requests, but that right may be outweighed by the government’s “significantly countervailing” interest. The Fourth Circuit noted that the “high profile” nature of the WikiLeaks investigation and the public’s interest in learning about it, did not outweigh the government’s “interest in maintaining the secrecy of its investigation, preventing potential subjects from being tipped off, or altering behavior to thwart the Government’s ongoing investigation.” The Fourth Circuit ultimately decided that the government’s interest in keeping the methods it is using to investigate WikiLeaks secret outweighed the public’s right of access to the information.
The Fourth Circuit’s entire opinion may be found here.