FOR PUBLICATION



### UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

FORBES MEDIA LLC; THOMAS BREWSTER,

Plaintiffs

- Appellants,

v.

UNITED STATES OF AMERICA,

Defendant

- Appellee. No. 21

- 16233

D.C. No.
4:21

- mc

- 80017

- PJH

OPINION

Appeal from the United States District Court
for the Northern District of California Phyllis J. Hamilton, District Judge, Presiding

In re: APPLICATION OF FORBES
MEDIA AND THOMAS
BREWSTER TO UNSEAL COURT RECORDS,

______________________________

FORBES MEDIA LLC; THOMAS BREWSTER,

Petitioners

- Appellants, No. 21

- 35612

D.C. No.
2:21

- mc

- 00007

- RSM2 F ORBES M EDIA LLC V

. U NITED S TATES

v.

UNITED STATES OF AMERICA,

Respondent- Appellee.

Appeal from the United States District Court for the Western District of Washington Ricardo S. Martinez, District Judge, Presiding

Argued and Submitted August 12, 2022 San Francisco, California

Filed March 13, 2023

Before: Johnnie B. Rawlinson, Bridget S. Bade, and Daniel A. Bress, Circuit Judges.

Opinion by Judge Bress

SUMMARY *

All Writs Act

Affirming two district court orders denying petitions to unseal court records, th e panel held that neither the First Amendment nor the common law provides a right of public

* This summary constitutes no part of the opinion of the court. It has been prepared by court staff for the convenience of the reader.F ORBES M EDIA LLC V

. U NITED S TATES 3

access to third

- party All Writs Act technical assistance materials relating to ongoing criminal investigations involving unexecuted arrest warrants.

Under the All W rits Act (“AWA”), federal courts may order private parties to provide technical assistance to law
enforcement to aid in the execution of arrest warrants. Here, Forbes Media and Thomas Brewster, a journalist and associate editor at Forbes (“petitioners”), filed petitions in
the Northern District of California and the Western District of Washington seeking to unseal past All Writs Act orders
issued to an online travel

- booking technology company related to ongoing criminal investigations in which the
United S tates had obtained arrest warrants but had been thus
far unable to make the arrests. The district courts in California and Washington denied petitioners’ motions, concluding for similar reasons, that there was no qualified
First Amendment or common law ri ght of public access to sealed AWA technical assistance materials relating to active warrants, and that the government had a compelling interest
in non

- disclosure while the criminal investigations remained ongoing.

The panel held that neither the First Amendment nor the common law rights to public access were so expansive as to encompass the materials sought here

— materials that have traditionally been maintained under seal to avoid exposing the government’s criminal investigations and compromising its pursuit of fugitives. In determining that the First Amendment’s right of access did not attach, the panel applied the “experience and logic” test set forth in Press

Enter. Co. v. Superior Court , 478 U.S. 1, 7 (1986), an d
concluded that it was aware of no historical tradition of public access to proceedings and materials under the AWA to obtain technical assistance from third parties in executing4 F ORBES M EDIA LLC V

. U NITED S TATES

arrest warrants. By all accounts, these proceedings have traditionally take n place ex parte and under seal. Logic likewise militated against a qualified right of access under
the First Amendment. Providing public access to AWA technical assistance proceedings in support of unexecuted sealed arrest warrants could easily expose sensitive law

enfor cement techniques and endanger active criminal investigations.

Addressing whether common law conferred such a right, the panel held that petitioners had not demonstrated an “important public need” justifying disclosure. Given the
similarities cross

- cutti ng AWA third

- party technical assistance proceedings, grand jury proceedings, and pre

indictment search warrant materials, as a matter of analogical reasoning, the materials petitioners sought here were not within the common law right of access. Finally,

a nd regardless of whether the argument was advanced under the common law, the First Amendment, or both, the panel rejected petitioners’ position that the district courts should have analyzed the right of public access question by focusing on the types of documents petitioners sought (motions, orders, etc.) rather than the nature of the AWA proceedings of which the documents were a part.

COUNSEL

Grayson Clary (argued) and Katie Townsend, Reporters Committee for Freedom of the Press, Washington, D.C.;

Jean

- Paul Jassy, Jassy Vick Carolan LLP, Los Angeles, California; Ambika Kumar, Davis Wright Tremaine LLP, Seattle, Washington; for Plaintiffs -Appellants.F ORBES M EDIA LLC V

. U NITED S TATES 5

Joshua K. Handell (argued), Attorney, Appellate Section, Criminal Division; Lisa H. Miller, Deputy Assista nt Attorney General; Kenneth A. Polite Jr., Assistant Attorney General; United States Department of Justice; Washington, D.C.; Matthew M. Yelovich, Assistant United States Attorney; Stephanie M. Hinds, United States Attorney for
the Northern District of Ca lifornia; Office of the United States Attorney; San Francisco, California; Teal L. Miller, Assistant United States Attorney; Nicholas W. Brown, United States Attorney for the Western District of Washington; Office of the United States Attorney; Seattle,

Wa shington; for Defendant

- Appellee.

Mason A. Kortz, Cyber Law Clinic, Harvard Law School, Cambridge, Massachusetts, for Amicus Curiae Restore the
Fourth.

Aaron Mackey and Jennifer Lynch, Electronic Frontier Foundation, San Francisco, California; Brett Max Ka ufman, American Civil Liberties Foundation, New York, New York; Jennifer Stisa Granick, American Civil Liberties Foundation, San Francisco, California; Jacob A. Snow, ACLU Foundation of Northern California, San Francisco, California; Riana Pfefferkorn, Sta nford Internet Observatory, Stanford, California; for Amici Curiae the Electronic Frontier Foundation, American Civil Liberties Union Foundation, American Civil Liberties Union Foundation of Northern California, and Riana Pfefferkorn.6 F ORBES M EDIA LLC V

. U NITED S TATES

OPINION

BRESS, Cir cuit Judge:

Under the All Writs Act, federal courts may order private parties to provide technical assistance to law enforcement to aid in the execution of arrest warrants. We are asked to
decide whether the First Amendment or the common law

creates a right of public access to third

- party technical assistance proceedings relating to unexecuted arrest

warrants in active criminal investigations

. W e hold that
neither the First Amendment nor the common law confers such a right

. Both district courts in this consolidated appeal
reached the same conclusion . W e affirm.

I

T he All Writs Act (AWA) , which has its origins in the Judiciary Act of 1789, provides that federal courts “may issue all writs necessary or appropriate in aid of their respective jurisdictions and agreeable to the usages and principles of law.” 28 U.S.C. § 1651(a). Under the AWA,

a f ederal court may “ issue such commands

. . . as may be necessary or appropriate to effectuate and prevent the frustration of orders it has previously issued

. ” United States
v. New York Tel. Co. , 434 U.S. 159, 17 2 (1977). This includes the power to issue orders to persons “who, though not parties to the original action or engaged in wrongdoing,”

are nonetheless poised to aid “the implementation of a court order or the proper administration of justice.” Id. at 174.

Consistent with this authority, we have recognized that
the AWA may be used to order third parties to assist in the
execution of warrants. See Plum Creek Lumber Co. v.

Hutton , 608 F.2d 1283, 1289 (9th Cir. 1979) (“The All WritsF ORBES M EDIA LLC V

. U NITED S TATES 7

Act

. . . permits the district court, in aid of a valid warrant, to order a third party to provide nonburdensome technical
assistance to law enforcement officers.” ). In practical terms, this means that federal courts may issue orders to private companies and others to provide technical assistance that
will help law enforcement apprehend a suspe ct under an outstanding warrant

, or that will otherwise aid a n ongoing criminal investigation. One high

- profile example is the Department of Justice’s 2016 application for an AWA order that would have required Apple to provide technical
information on how to bypass the security features of a n iPhone belonging to a shooter in the San Berna r dino terrorist
attack. With this background, we now turn to the matter
before us.

Thomas Brewster is a journalist and associate editor at Forbes Media who covers surveillance, security, and privacy issues. In March 2020, Brewster located an application for
an AWA technical assistance order on the public docket of
the District Court for the Southern District of California (S.D. Cal.). A ccording to the clerk ’s stamp, the application had been unsealed on February 14, 2020. It appears this application was unsealed by mistake

. Nevertheless, Brewster lawfully obtained it , and the application is now part of the public record in this case and others

. In the S.D. Cal. a pplication , the Department of Justice requested an AWA order compelling Sabre, a n online travel

booking technology company , “to assist in the execution of a federal arrest warrant by periodically reviewing its records
for evidence that the subject of the arrest warrant is traveling.” The application requested that

, every week for six months, Sabre “provide representatives of the FBI complete and contemporaneous ‘real time’ account activity”
for a n individual subject to an active warrant

. The S.D. Cal.8 F ORBES M EDIA LLC V

. U NITED S TATES

application explained that Sabre “processes roughly one third of all air travel reservations,” and that other courts ha d previously invoked the AWA to order Sabre to assist in the
execution of arrest warrants. For support, t he government’s
S.D. Cal. application specifically c ited several past AWA
orders issued to Sabre by federal courts in the Western District of Washington

, Northern District of California

, Western District of Pennsylvania, and Eastern District of Virginia

. In July 2020, Forbes published an online article about the S.D. Cal. application en titled: “The FBI Is Secretly Using A $2 Billion Travel Company As A Global Surveillance Tool.” This article, which Brewster authored, identified by name the fugitive who was the subject of the arrest warrant, as well

as t he details of the government’s request for assistance to Sabre. The article also linked to an unredacted copy of the
S.D. Cal. application, which was hosted on a third

- party

server. That linked application contained personal identifying information of th e fugitive, including his foreign address and passport number.

Maintaining that AWA orders raise vital issues of public

concern , Brewster and Forbes ( petitioners ) filed petitions in
the Northern District of California and the Western District of Washington seeking to unseal court records for those

matters referenced in the S.D. Cal. a pplication. E ach petition requested access to (1) any AWA order that had issued; ( 2) the government’s application for such an order and any supporting documentation; (3) any other records, such as sealing motions and orders; and (4) the relevant
docket sheets. The AWA orders in these cases related to ongoing criminal investigations in which the United StatesF ORBES M EDIA LLC V

. U NITED S TATES 9

had obtained arrest warrants but had been thus far unable to
make the arrest s

. 1

The district court s in California and Washington denied petitioners’ motions. For similar reasons

, the courts
concluded that there i s no qualified First Amendment or common law right of public access to sealed AWA technical
assistance materials relating to active warrants , and that the government ha s a compelling interest in non

- disclosure
while th e criminal investigation s remain ongoing. Both courts also found that releasing the sealed information with redactions would not adequately protect the government’s interests in ensuring th at active criminal investigations are not jeopardized. The only not able difference between the

two rulings is that the Northern District of California sua sponte ordered the government to give notice when its
criminal investigation closed or bec a me public

, on the theory
that

, as to a potential right of access, “a different court may come to a different conclusion in a post

- investigative
context.”

Petitioners appealed both decisions, and we consolidated the appeals . W e have jurisdiction under 28 U.S.C. § 1291.

II

Matters decided in the courts are often of con siderable public interest

, and we have no reason to question petitioners when they assert that the public has an interest in knowing
more about how AWA order s are used to enlist private companies to assist in criminal investigations. T he question
here , however, is not one of public interest but public access

.

1 Petitioners filed similar requests in the Western District of Pennsylvania and the Eastern District of Virginia, which we will discuss
further below.10 F ORBES M EDIA LLC V

. U NITED S TATES

A nd greater public attention does not inevitably mean greater disclosure when competing interests are at stake

. The First Amendment and common law right s to public

access that petitioners invoke are neither all

- encompassing

nor absolute

. In this case, w e hold that th ose rights are not so expansive as to encompass the materials sought her e

— materials that have traditionally been maintained under seal

to avoid exposing the government’s criminal investigations
and compromising its pursuit of fugitives

. Whether the analysis would be different when the arrests ha ve been made and the criminal investigation s complete d is a matter for another day. Here

, we hold that neither the First Amendment nor the common law provides a right of public access to sealed AWA technical assistance materials relating to ongoing criminal investigations involving unexecuted arrest

warrants

.
A

We begin with t he First Amendment , which provides a qualified right of public access to certain governmental proceedings. See Press

- Enter

. Co. v. Superior Court , 478 U.S. 1, 7 (1986) ( Press Enterprise II ) ; First Amend. Coal. o f Ariz., Inc. v. Ryan , 938 F.3d 1069, 1074 (9th Cir. 2019). This right extends to some criminal proceedings, such as trials, jury

- selection processes, and preliminary hearings. First
Amend. Coal. , 938 F.3d at 1078 (citing Press

- Enterprise II

, 478 U.S. at 13; Press

- Enter

. Co. v. Superior Court , 464 U.S. 501, 512 (1984) ( Press

- Enterprise I ); Globe Newspaper Co. v. Superior Court , 457 U.S. 5 96, 606 ( 1982); Richmond Newspapers, Inc. v. Virginia , 448 U.S. 555, 580 (1980) (plurality op.) )

. The First Amendment right of access also
extends to “various documents filed in criminal proceedings

, ” such as plea agreements. Id

.F ORBES M EDIA LLC V

. U NITED S TATES 11

But the First Amendment is not an all

- access pass to any court proceeding or court record

. As we have explained, although “[e]very judicial proceeding, indeed every governmental process, arguably benefits from public scrutiny to some degree,” there are situations in which “complete openness would undermine important values that are served by keeping some proceedings closed t o the public.” Times Mirror Co. v. United States , 873 F.2d 1210

, 1213 (9th Cir. 1989). The public generally has presumptive access to judicial opinions , hearings, and court filings , but we would not think the public should be privy to judicial
deliberations . The public similarly may view many aspects
of jury trials , b ut we do not allow a live video feed from the jury room.

The same is true of certain aspects of criminal proceedings more generally

. Grand jury proceedings are the classic examp le because

, in that context

, open ing the

courtroom and unveiling court files could dramatically imperil criminal investigations. Grand jury proceedings
have thus long taken place outside of public view. See Press Enterprise II , 478 U.S. at 9; Douglas Oil Co. v. Petrol Stops

Nw. , 441 U.S. 211, 218 (1979); Times Mirror , 873 F.2d at
1215 ; see also Phoenix Newspapers, Inc. v. U.S. Dist. Court for Dist. o f Ariz. , 156 F.3d 940, 946 (9th Cir. 1998) (“Of course, there is no right of access which attaches to all judicial proceedings, even all criminal proceedings.”).

The competing interests at stake in this area led the Supreme Court to adopt what has become known as the “experience and logic” test

. See Press

- Enterprise II , 478
U.S. a t 8

– 9

. To determine if a qualified First Amendment right of access attaches , we must consider (1) experience: “whether the type of proceeding at issue has been traditionally conducted in an open fashion

, ” Oregonian12 F ORBES M EDIA LLC V

. U NITED S TATES

Pub l’g Co. v. U.S. Dist. Court for Dist. of Oregon , 920 F.2d 1462, 1465 (9th Cir. 1990); and (2) logic: “whether public access plays a significant positive role in the functioning of the particular process in question.” Press

- Enterprise II

, 478
U.S. at 8. Even with a sufficient showing under this test, however, a qualified First Amendment right can still be “overcome by a compelling governmental interest” in
nondisclosure. In re Copley Press , Inc. , 518 F.3d 1022, 1026 (9th Cir. 2008).

Turning to the “experienc e” and “logic” analysis, w e first conclude with little difficulty that petitioners have not made a sufficient showing under the “experience” prong

. In evaluating “experience,” we consider “ whether the place and process have historically been open to the press and general public

. ” Press

- Enterprise II , 478 U.S. at 8. Here , w e are aware of no historical tradition of public access to proceedings and materials under the AWA to obtain technical assistance from third parties in executing arrest

warrants. By all accounts, these proceedings have traditionally taken place ex parte and under seal.

In this respect, AWA technical assistance proceedings are similar to other court proceedings relating to criminal investigations that have been traditionally conducted outside of public view. Grand jury proceedings, as we have noted, have long been kept secret. The sam e is true of pre

indictment search warrant proceedings. And i n Times
Mirror , the precedent most relevant to this case, we specifically held that “members of the public have no right of access to search warrant materials while a pre

- indictment investigation is under way.” 873 F.2d at 1211. We explained in Times Mirror that search warrants are traditionally issued upon th e government’s ex parte applications, which courts consider in camera

. Id. at 1214.F ORBES M EDIA LLC V

. U NITED S TATES 13

W e concluded that because th e process for issuing warrants “has always been considered an extension of the criminal investigation itself,” it “follow[ed] that the information disclosed to the magistrate judge in support of the warrant request is entitled to the same confidentiality accorded other aspects of the c riminal investigation.” Id. That same reasoning inheres here. AWA technical assistance proceedings

, which have been traditionally conducted under seal, are part and parcel of criminal investigations in ways analogous to search warrant proceedings. And h ere, as in
both Times Mirror and the grand jury context , “there is no history of unrestricted access” to the materials petitioners
seek. Id.

T rying a different angle, p etitioners argue that proceedings for injunctive relief are traditionally open to the public

, and that because AWA technical assistance proceedings can lead to orders that are injunctive in nature, we should regard AWA technical assistance proceedings as presumptively publ ic, too. We reject this logic , which
operates at a stratum of abstraction far removed from the
nature of the AWA proceedings at issue here

. The Supreme
Court has instructed that in this area of constitutional law

, “the First Amendment question cannot be resolved solely on the label we give the event, i.e. , ‘trial.’” Press

- Enterprise II

, 478 U.S. at 7. It is therefore not enough, as petitioners would have it, that AWA technical assistance proceedings may look like injunctive relief proceedings in some stylized

sense. In an area of First Amendment jurisprudence driven by “functional concerns,” Cal. First Amend. Coal. v. Woodford , 299 F.3d 868, 877 (9th Cir. 2002), petitioners ’ analogy to injunctive relief i s far too formalistic

. Any similarity between AWA technical assistance proceedings
and typical requests for injunctive relief

— which do not14 F ORBES M EDIA LLC V

. U NITED S TATES

fairly approximate AWA proceedings anyway

— is
in sufficient to establish the history of open access required
under the Supreme Court’s “experience” inquiry.

The absence of experience , however, does not necessarily foreclose a qualified right of public access under
the First Amendment

. We have held that “logic alone, even without experience, may be enough to establish the right.” Copley Press , 518 F.3d at 1026. But in this instance , logic
likewise militates against a qualified right of access under
the First Amendment

. As we noted above, under “logic” we consider “whether public access plays a significant positive role in the functioning of the particular process in question.” Press

Enterprise Co. II , 478 U.S. at 8. Not every request for public
access fits that bill. The Supreme Court has recognized that, “[a]lthough many governmental processes operate best under public scrutiny, it takes little imagination to recognize that there are some kinds of government operations that would be totally frustrated if conducted ope nly.” Id. at 8

– 9.
We have thus made clear t hat “[w]here the harm caused by disclosure of judicial records outweighs the benefit of disclosure to the public, public access no longer ‘plays a significant positive role in the functioning of the particular

p rocess in question.’” United States v. Index Newspapers

, 766 F.3d 1072, 1087

– 88 (9th Cir. 2014) ( quoting Press

Enterprise Co. II , 478 U.S. at 8).

In this case, w e conclude that public access would not play a significant positive role in the function ing of AWA technical assistance proceedings involving outstanding

arrest warrants that remain sealed. Indeed, far from playing a significant positive role, allowing public access in t hese
circumstances would likely have deleterious consequences

.F ORBES M EDIA LLC V

. U NITED S TATES 15

Our decision in Times Mirror is highly instructive on this point.

There, in holding that the First Amendment did not create a qualified right of access to search warrants and related materials at the pre

- indictment stage of a criminal investigation, we concluded that “logic” did not support
disclosure. 873 F.2d at 1214

– 18. We acknowledge d the potential benefits of public access, noting that “open warrant proceedings might operate as a curb on prosecutorial or judicial miscond uct

. ” I d. at 1217 ( citation and quotation
marks omitted)

. And we further accepted that “ public access would doubtless have some positive effect by increasing the flow of information to the public about the workings of the government and by deterring judicial and law enforcement officers from abusing the warrant process .” Id. at 1218.
These potential benefits are similar to the ones that petitioners advance in this case

.
But these asserted benefits did not rule the day in Times
Mirr or , and they do not do so here. In Times Mirror

, “logic” did not support public access because the “clearly legitimate” interests supporting disc l osure were “more than outweighed by the damage to the criminal investigatory process that could result from open warrant proceedings.”
Id. at 1215. Analogizing to grand jury proceedings, which we viewed as “indistinguishable,” we explained that open search wa r rant proceedings would jeopardize criminal investigations. Id. Among other things, if the search warrant proceedings or related documents were made public, “there would be the obvious risk that the subject of the search
warrant would learn of its existence and destroy evidence of criminal activity before the warrant could be executed.” Id.
We also cited the importance of protecting the privacy of

persons identified in the warrants , as well as the need to16 F ORBES M EDIA LLC V

. U NITED S TATES

avoid encouraging suspects to flee the jur isdiction

. Id. at
121 5

– 16

. We concluded that for these reasons , “the incremental value in public access is slight compared to the government’s interest in secrecy at this stage of the investigation.” Id. at 1218 ; see also id. at 1217 (“[W]hatever
the social utility of open warrant proceedings and materials while a pre

- indictment investigation is ongoing, we believe
it would be outweighed by the substantial burden openness would impose on government investigations.”).

Similar r easoning supports our analysis under th e “logic”

prong here

. P roviding public access to AWA technical assistance proceedings in support of unexecuted sealed

arrest warrants could easily expose sensitive law

enforcement techniques and endanger active criminal investigations. Persons subject to sealed arrest warrants could learn not only that the government is on their trail but
also the means the government is using to locate them

. C riminal actors not yet subject to investigation might also catch on to the government’s broader investigatory methods

. This c ould make it harder to catch fugitives , who might change their pra ctices to avoid capture

. Public disclosure
could also , among ot her adverse consequences, create safety
risks for law enforcement

, lead to the destruction of
evidence

, and compromise sources who assist the government.

Included in the record in this case is a declaration from FBI Special Agent J ared Brown that lays out how the public disclosure of AWA technical assistance proceedings and
records c ould impede criminal investigations. We find this
declaration persuasive

. It confirms that publicizing the
details of secret law enforcement effort s to arrest su spected wrongdoer s “would hinder, rather than facilitate,

. . . the government’s ability to conduct criminal investigations.”F ORBES M EDIA LLC V

. U NITED S TATES 17

Times Mirror

, 873 F.2d at 1215. Indeed, because an arrest

warrant pertains to a suspected criminal himself

, disclosure of AWA technical assistance proceedings involving active

arrest warrants may compromise criminal investigations to an even greater degree than the public release of search

warrants

. This is especially so considering that the government uses AWA technical assistance orders to locate international fugitives , who may pose unique dangers to public safety

. The “logic” analysis of Times Mirror applies perforce in this context.

We acknowledge petitioners’ central rejoinder that greater public scrutiny of AWA technical assistance proceedings could act as a check on government overreach.

But that is the same worthy interest that we ultimately found
insufficient in Times Mirror

. S ee 873 F.2d at 1215

– 16,
1218. Faced with that precedent, p etitioners theorize that the risk of government overreach is greater here than it was in

Times Mirror

. In particular, p etitioners contend that

, in the search warrant context, the public will eventually have the
chance to assess potential abuses of the search warrant

process because of the availability of suppression motions and civil actions for violations of constitutional rights. In petitioners’ view, these kinds of back

- end public checks are not available for AWA technical assistance orders.

We are not taken by petitioners’ efforts to avoid the logical and persuasive force of Times Mirror

. A lthough

Times Mirror mentioned the availability of after

- the

- fact safeguards such as suppression motions

, see id. at 1218, this
consideration was not dispositive, but was rather one piece
of our broader “logic” balancing

. We did not dwell on the point long, perhaps because it goes only so far: s earch warrants are not invariably the subject of legal challenges

, nor do they invariably lead to prosecutions

.18 F ORBES M EDIA LLC V

. U NITED S TATES

Regardless, the notion that technical assistance proceedings will fo rever go unchallenged or unnoticed
absent a constitutional right of access is overstated.
Petitioners themselves assert that there today exists a robust public debate over these investigatory devices. The government acknowledges that AWA technical assistance orders may still be subject to challenge through different legal pathways, such as by the suspect s themselves or by entities like Sabre, who receive the AWA orders. Cf. United States v. Mountain States Tel. & Telegraph Co. , 616 F.2d
1 122, 11 32

– 33 (9th Cir. 1980) (“ [W]e believe that a telephone company whose cooperation in electronic surveillance is sought should be afforded reasonable notice and an opportunity to be heard prior to the entry of any order compelling its assistance.”). P etitioners and others al so remain free to raise their concerns with the political
b ranches, which have the ability to craft more specific rules that cannot be enacted judicially under the guise of the First
Amendment or the common law. And we reiterate that it
remains a separate question whether presumptive rights of
access would attach to AWA materials once the government’s criminal investigation ends and the suspect is apprehended

— an issue for a future case.

In short, whatever differences one might posit between AWA technical assistance proceedings involving active arrest warrants, on the one hand, and sealed pre

- indictment search warrants, on the other, the differences are not significant enough to alter the overall “logic” balancing we performed in Times Mirror

. “ L ogic,” like “experience,” tells
us that there is no qualified First Amendment right of access to AWA technical assistance proceedings and materials relating to unexecuted arrest warrants in ongoing criminal investigations.F ORBES M EDIA LLC V

. U NITED S TATES 19

B

We turn next to whether the common law confers such a right. Courts have recognized a common law “right to inspect and copy public records and documents, including judicial records and documents.” Nixon v. Warner Commc’ns, Inc

. , 435 U.S. 589, 597 & n.7 (1978). The Supreme Court has emphasized, however, that this right “is
not absolute.” Id. at 598. Under our case law, “ [u]nless a particular court record is one ‘traditionally kept secret,’ a ‘strong presumption in favor of ac cess’ is the starting point.” Kamakana v. City and Cnty. of Honolulu , 447 F.3d 1172, 1178 (9th Cir. 2006) (quoting Foltz v. State Farm Mut. Auto
Ins. Co. , 331 F.3d 1122, 1135 (9th Cir. 2003)) (emphasis added). When that presumption attaches, the party se eking

to overcome it must point to “compelling reasons” supporting sealing, supported by specific factual findings.
Id.

As we just noted, however, there is an important “unless” here: the common law presumption of access does not even come into play for court records “traditionally kept secret.”
This carve

- out is a “term of art” that refers to materials for which “there is ‘neither a history of access nor an important public need justifying access.’” Id. at 1184

– 85 (quoting

Times Mirror , 873 F.2d at 1219; emphasis omitted). Thus, under the common law, records that have “traditionally been kept secret for important policy reasons” are “not subject to the right of public access at all.” Id. at 1178.

Our cases have not been precise in d etailing how the First Amendment and common law rights may differ in scope

once the rights attach, although we have observed that “[t]he First Amendment is generally understood to provide a stronger right of access than the common law.” United20 F ORBES M EDIA LLC V

. U NITED S TATES

States v. B us

. of Custer Battlefield Museum & Store , 658 F.3d 1188, 1197 n.7 (9th Cir. 2011). The question here, however, is whether the right s attach in the first place. And
our cases indicate that

, in considering that threshold question, the common law

, like the First Amendment

, turns on roughly similar considerations of historical tradition and the risks and benefits of public disclosure. See Kamakana

, 447 F.3d at 1184

– 85.

The paradigmatic examples of records not subject to the common law right of public access are, once again, “grand jury transcripts and warrant materials in the midst of a pre

indictment investigation.” Id. at 1185 (citing Times Mirror

, 873 F.2d at 1219). But we have never suggested these are the only examples. Given the similarities cross

- cu tting
AWA third

- party technical assistance proceedings, grand jury proceedings, and pre

- indictment search warrant materials, as a matter of analogical reasoning we conclude that the materials petitioners seek are not within the common law right of access, either.

As we already explained in the context of the First Amendment, there is no history of public access to AWA
third

- party technical assistance proceedings relating to
active arrest warrants. In a footnote in their opening brief,

p etitioners identify several district court cases supposedly establishing such a tradition in the common law. See United
States v. Burns , 2019 WL 2079832 (M.D.N.C. May 10, 2019); Matter of the United States , 2 5 6 F. Supp. 3d 246, 252 (E.D.N.Y. 2017); In re Application of the U nited States for an Order Directing a Provider of Commc’n Servs. to
Provide Tech. Assistance , 128 F. Supp. 3d 478, 483

– 84 (D.P.R. 2015); Application of the United States , 407 F. Supp. 398, 4 11 (W.D. Mo. 1976).F ORBES M EDIA LLC V

. U NITED S TATES 21

We do not agree. We doubt that a scattered set of non

binding trial court orders from other jurisdictions could demonstrate the required common law tradition of public
access. But in any event, these cases do no such thing.

Burns involved a request to an already convicted defendant for technical assistance in unlocking his own hard drive.

Burns , 2019 WL 2079832, at *1

– 5. And the remaining cases
involved courts that declined to issue AWA technical
assistance orders and that did no t otherwise disclose sensitive information relating to active arrest warrants

. These cases do not support a tradition of access to AWA technical assistance proceedings relating to ongoing criminal investigations.

Under the common law, petitioners likewise have not demonstrated an “important public need” justifying
disclosure. Times Mirror , 873 F.2d at 1219. As we explained in the First Amendment context, disclosure of AWA technical assistance proceedings while the suspect is at large and the criminal investigation underway could compromise criminal investigations and risk exposing sensitive investigative methods. See id. (explaining that
there was no “im portant public need” for disclosure under the common law because “[a]s we explained in our discussion of appellants’ First Amendment claim, the ends of justice would be frustrated, not served, if the public were
allowed access to warrant materials in the m idst of a preindictment investigation into suspected criminal activity”).

Petitioners advance two other interests that they claim demonstrate an important public need for access to AWA
third

- party technical assistance proceeding s . Neither persuades us . F irst, petitioners argue that disallowing access to these proceedings “would deny Congress the insight22 F ORBES M EDIA LLC V

. U NITED S TATES

necessary to craft better

- tailored legislation” in this area. But there is no basis to believe that Congress needs our
assistance on this front . Congres s’s ability to obtain information does not depend on the efforts of private litigants like petitioners because Cong r ess has its own “broad” powers to “secure needed information in order to legislate.” Trump v. Mazars USA, LLP , 140 S. Ct. 2019, 2031 (2020) ( citation and quotation marks omitted). It
would not be appropriate for us to fashion a new common law right of access in service of a coordinate b ranch’s alleged need for information when that b ranch has sufficient means at its disposal for obtaining th e information it needs.

Second, petitioners maintain that nondisclosure of AWA
technical assistance materials will “cut short public debate on the difficult, controversial legal questions characteristically presented in this context.” This is essentially a reprise of the argument we rejected above

, namely, that we should recognize a presumptive right of

access because greater transparency can act as a check on government power. We again do not doubt this potential
benefit of disclosure . But as in Times Mirror , we simply
conclude that it is “more than outweighed by the damage to the criminal investigato ry process ” that would result. Times
Mirror , 873 F.2d at 1215 ; see also Index Newspapers LLC

, 766 F.3d at 1087 (“[I]t is well established that the harm caused by disclosure of certain judicial records more than outweighs any benefit caused by such disclosure.”). And in
this case , the notion that greater disclosure is critical for public debate is tempered by petitioners ’ own representation that there already exists “a wide

- ranging public debate on the legitimate scope of court

- ordered technical assistance.”F ORBES M EDIA LLC V

. U NITED S TATES 23

C

Finally, and regardless of whether the argument is advanced under the common law, the First Amendment, or both, we reject petitioners’ position that the district courts
below should have analyzed the right of public access question by focusing on the types of documents petitioners
seek (motions, orders, etc.) rather than the nature of the
AWA proceedings of which the documents are a part. Petitioners maintain, in other words, that we should ask simply whether certain categories of court documents are usually publicly available, and, if so, treat them as falling within a presumptive right of ac cess.

Petitioners ’ narrow focus on categories of documents is

not correct. We have never held that in making the threshold right of public access determination, courts should consider
the categories of documents sought abstracted from the proceedings in w hich they were generated

. To the contrary, when we considered whether there was a right of public
access to pre

- indictment search warrant materials, we evaluated the nature of the proceeding itself

. See Times

Mirror

, 873 F.2d at 1213 (“[T]he public has no right of access to a particular proceeding without first establishing that the benefits of opening the proceeding outweigh the costs to the public.”); id. (“We know of no historical tradition of public access to warrant proceedin gs.”); id. at 1215 (“[S]earch warrant proceedings, like grand jury proceedings, require secrecy.”); id. at 1218 (“[W]e hold that members of the public have no First Amendment right to attend warrant proceedings, or to obtain the documents relating to those proceedings, while the investigation is ongoing but before indictments have been returned.”) ; see also , e.g. , Oregonian Pub l’g Co. , 920 F.2d at 1465 (“ [W]e must decide whether the type of proceeding at issue has24 F ORBES M EDIA LLC V

. U NITED S TATES

traditionally be en conducted in an open fashion.”). This is the same analysis we conducted above

. In advancing their different approach, p etitioners rely on our decision in Index Newspapers

. But a closer reading of
that case shows that petitioners’ position lacks foundation

. In Index Newspapers

, two witnesses were subpoenaed to testify before a federal grand jury

. 766 F.3d at 1079. They both filed motions to quash, which were denied. Id. After
the witnesses continued to r efuse to testify, the district court held contempt proceedings. Id. Those portions of the contempt proceeding s that involved disclosure of the grand jury materials and proceedings were sealed, but the district court opened the contempt proceedings to the public when announcing that the witnesses were in contempt and ordering
them confined. Id. A media organization later sought to unseal the records of the contempt proceedings. Id. at 1080.
The district court concluded that there was “no public right of access to grand jury proceedings ” or “proceedings held ancillary to grand jury investigations,” but that it would
unseal transcripts from the open portions of the contempt proceedings. See i d at 1080

– 81

. On appeal, we carefully evaluated the right of access questions based on the nature of the proceedings themselves.

We held that there was no First Amendment right of access

to “(1) filings and transcripts relating to motions to quash grand jury subpoenas; (2) the close d portions of contempt proceedings containing discussion of matters occurring before the grand jury; or (3) motions to hold a grand jury witness in contempt.” Id. at 1084

– 85. We further held that any common law right to these materials was “outweighed by the compelling government interest in maintaining grand jury secrecy.” Id. at 1085. Our analysis turned not on the categories of individual documents sought or even on theF ORBES M EDIA LLC V

. U NITED S TATES 25

“particular proceedings” in that case, but on “ the class of proceedings as a whole ,” which were integral to an ongoing grand jury investigation and involved information from that investigation

. Id. at 108 6 (emphasis added) ; see also id. at 1087 ( explaining that “ [ l ] ogic dictates that the record of proceedings concerning motions to quash grand jury subpoenas should be closed” because there are “several compelling reasons why grand jury proceedings should be kept secret” )

. We explained that

, for important public interest reasons,

g rand jury proceedings were traditionally conducted in

secret. Id. at 1084, 1086

– 87, 1092

– 93. It followed that materials relating to a motion to quash grand jury subpoenas
and a government contempt motion

— which wer e ancillary

to a n otherwise secret and ongoing grand jury investigation

— were not subject to a right of access either

, lest public access “frustrate criminal investigations

. ” Id. at 1093 (quoting Times Mirror , 873 F.2d at 121 3 ). This aspect
of Index Newspapers , which focused on the nature of grand jury proceedings, fully supports the approach that the district
courts followed here.

The same is true of that portion of Index Newspapers dealing with the contempt proceeding itself , part of which was conducted openly in district court

. In Index Newspapers , w e regarded the open contempt proceeding as “better resembl[ing] a criminal trial than

. . . a grand jury proceeding.” Id. at 1089 (quoting United States v. Gue rro , 693 F.3d 990, 1001 (9th Cir. 2012)). From that crucial premise, we reasoned that the public may have a qualified right o f ac c ess to a contempt hearing transcript “where there has been a request to make the hearing public, where the witness does not object, and where the court is satisfied that opening the hearing will not thwart the grand jury’s26 F ORBES M EDIA LLC V

. U NITED S TATES

investigation or jeopardize other wi tnesses or evidence.” Id. We similarly concluded that “because of the hearings’ similarities to criminal trials,” the orders of contempt and
confinement we re also subject to a presumptive right of public access, “at least when the grand jury witness does not object and the court determines that the grand jury investigation will not be compromised.” Id. at 1093.

Properly considered, our analysis of the contempt proceedings in Index Newspapers did not turn on a formal typology of documents blind to the proce eding s from which they arose . Instead, we considered the nature of the proceedings themselves

, a task made more challenging
because of the dual nature of the proceedings at issue. In Index Newspapers , w e homed in on the fact that a contempt proceeding for refusal to testify before a grand jury effectively straddle s the traditional secrecy of grand jur y proceedings and the traditional openness of a criminal trial.
See id. at 1089, 1093. The contempt pro ceedings , in other words, drew on and exposed a criminal investigation and grand jury process , but they involved a criminal prosecution
as well , with resulting detention

. In Index Newspapers , t h is entangling of traditionally secret and traditionally open proceedings provided the critical backdrop for how we analyzed which aspects of the contempt proceedings should be regarded as presumptively public in nature

. Although it was necessary to discuss the various documents requested in

pars ing the dual

- nature proceedings

, our right of access analysis remained focused on the nature of the proceedings and not simply the formal categories of documents at issue

. 2

2 Petitioners’ reliance on Index Newspapers as grounds for obtaining
docket sheets is therefore misplaced. In Index Newspapers , we directedF ORBES M EDIA LLC V

. U NITED S TATES 27

In this case, by contrast, there is no aspect of AWA technical assistance proceedings that is akin to a criminal
trial or any other traditionally public proceeding. Instead, as we have explained, AWA technical assistance proceedings

are more analogous to search warrant proceedings during

pre

- indictment investigations and grand jury proceedings, as
to which there is no qualified right of public access. See

Times Mirror

, 873 F.2d at 1213

– 16, 1219. Times Mirror is
thus the mo st relevant precedent here

. For these reasons, we conclude that there is no First
Amendment or common law right of access to AWA technical assistance proceedings and materials relating to
unexecuted arrest warrants in ongoing criminal investigations. It is therefore unnecessary for us to decide whether, even assuming a presumptive right of access,
nondisclosure of these materials was justified. See United
States v. Doe , 870 F.3d 991, 998 (9th Cir. 2017); Kamakana

, 447 F.3d at 1178

– 79.

D

Although we have held that petitioners do not at this time have a qualified right of access to AWA technical assistance proceedings , we do not decide whether the analysis w ould
be different once the suspect is caught and the criminal investigation concluded. Compare Times Mir ror , 873 F.2d

the district court to release docket sheets (with any necessary redactions) only because the district court had already unsealed certain information.
See 766 F.3d at 1092. Without the docket sheet, “in practice, the public
had no way of accessing the transcript the court intended to unseal.” Id. Index Newspapers merely confirms that redacted docket sheets may be made available when a qualified right of public access otherwise attaches; it does not create such a qualified right fo r docket sheets or for any other specific type of record.28 F ORBES M EDIA LLC V

. U NITED S TATES

at 1211 (holding that “m embers of the public have no right of access to search warrant materials while a pre

- indictment investigation is under way,” but reserv ing “whether the public has a First Amendment right of access to warrant
materials after an investigation is concluded or after indictments have been returned”), with Bus iness of Custer Battlefield Museum & Store , 658 F.3d at 1192

– 94 (recognizing a qualified right of public access to search warrant materials after the criminal investigation has been terminated).

As we noted earlier, t he district court in the Northern District of California anticipated this potential distinctio n and sua sponte ordered the government to give notice when its investigation close s or become s public

, so that petitioners
could then file a new application to unseal the AWA materials in question. The court further ordered the government in the interim to file annual certifications stating that its investigation remains ongoing and that the underlying AWA technical assistance materials remain
sealed. The government did not cross

- appeal these aspects of the Northern District’s orders, and we have no occasion
to consider them.

But p icking up on the Northern District’s lead, petitioners now ask us to impose similar requirements in the Western District of Washington case. Petit ioners further ask us to preemptively order unsealing once the relevant criminal investigations end. In the exercise of our discretion,

w e decline this request. Petitioners did not seek this relief in the Western District of Washington. Nor would it be proper for us to decide a hypothetical future request for unsealing

o r to issue blanket rules that transcend the case before us

.F ORBES M EDIA LLC V

. U NITED S TATES 29

We leave to district courts in the first instance the
decision of whether to impose reporting requirements akin
to those that the Northern District of California adopted

. The government

— which at oral argument expressed some receptivity to the Northern District’s approach

— may wish
to consider adopting its own policies in this area

. And in all

eve nts, we leave to future courts resolution of the question whether any or all portions of AWA technical assistance proceeding materials fall within a presumptive right of public access once a n arrest warrant is executed and a criminal investigation conclude d

.
III

We briefly address post

- argument developments
in volving related litigation . As we explained above, in the inadvertently unsealed S.D. Cal. application that Brewster
located , the government referenced prior AWA orders to
Sabre issued not only in the Northern District of California and Western District of Washington, but also in the Eastern District of Virginia and Western District of Pennsylvania. Petitioners sought unsealin g in those other courts , too

. In the Eastern District of Virginia case, United States v.
Burkov , No. 1: 15

- cr

- 00 245 (E.D. Va. Apr. 20, 2022 ) , Dkt.
86 , the government assented to the disclosure of certain
AWA materials because there

, the suspect had been apprehended, the investigation completed, and the criminal proceedings closed. In Burkov , the government stated that although it “does not believe that the entry of a final judgment and the defendant’s release from imprisonment will alway s be dispositive as to whether unsealing AWA materials is appropriate,” “on the facts of this case, the government believes that sealing is no longer necessary.” Although petitioners try to fashion this into a grand30 F ORBES M EDIA LLC V

. U NITED S TATES

concession , we think the government’s p osition in Burkov proves little here other than that the considerations may well be different when the suspect is arrested and the investigation complete. That is the same question we
reserved above.

T he Western District of Pennsylvania case, like the cases before us, involved AWA technical assistance proceedings involving Sabre relating to an unexecuted arrest warrant , in which the criminal investigation was still ongoing

. See In re Application of For bes Media LLC , 2022 WL 1736 9017 , at *9 ( W.D. Pa. Dec. 2, 2022). Brewster and Forbes moved to
unseal the same types of AWA materials they sought here

. O n December 2, 2022, in an unpublished decision, the Western District of Pennsylvania granted petitioners’
request in relevant part

. Without reaching the First Amendment question , the

court found that the materials should be disclosed under the common law right of access. Id. at *1 & n.2. In particular,

t he Western District of Pennsylvania analyzed the documents by formal category and concluded that they fell within the common law right

, resulting in a presumption of
access that the government had not overcome. Id. at *4

– 10.
The court acknowledged that courts in the Northern District of California and Western District of Washington

— in the
cases before us

— had ruled differently

. Id. at *3. But the Western District of Pennsylvania perceived a difference
between Third Circuit and Ninth C ircuit law, asserting that the Third Circuit had yet to hold, as we held in Times Mirror

, that pre

- indictment search warrant materials should be treated like grand jury materials. Id. at *3 & n.4. The Western District of Pennsylvania thus ordered the release of the requested AWA materials, with redactions to conceal theF ORBES M EDIA LLC V

. U NITED S TATES 31

identity of the suspect and the particulars of the criminal investigation

. Id. at *1 , 10

. After it ruled on the specific redactions, the court in the
Western District of Pennsylvania gave the government fourteen days to seek a stay of its ruling in either the district
court or the Third Circuit. Id. at *11. The government did not seek a stay. The redacted AWA materials were then released. They were filed publicly wi th our court in late December 2022, after oral argument in this case.

W ithout broaching the issue of whether there is any
material difference between Third and Ninth Circuit law governing the common law right of access , it is sufficient to
note that

, as ou r analysis above would indicate, we respectfully disagree with the Western District of Pennsylvania’s decision

. That court improperly focused on the generic categories of documents requested , without fully considering the nature of the AWA technical assistance proceedings in which those documents were generated. Such an approach is not consistent with our precedents or with the basic principles underlying this area of law.

In post

- argument letters, petition ers have suggested that
because it failed to seek a stay of the Western District of Pennsylvania ruling, the government should be treated as having acquiesced in the release of AWA materials in the parallel cases before us involving the same petitioners, a t least to the extent of the materials ordered released in Pennsylvania

. We express no views on whether doctrines
such as waiver or forfeiture could apply in these
circumstances based on the government’s decision not to seek a stay of the Western District of Pennsylvania ruling. We have only a limited record concerning the proceedings
in the Western District of Pennsylvania, and t he district32 F ORBES M EDIA LLC V

. U NITED S TATES

courts in the two cases before us have not had opportunity to
consider this issue , which arose some months after this appeal was argued. Petitioners remain free to attempt to
raise this issue in the district court s , as appropriate. See Fed.
R. Civ. P. 60. But r ecent developments in the Western District of Pennsylvania do not undermine the district courts’
decisions her e based on the record that was before them , or our legal determination on the qualified right of access questions

. Under these circumstances, and for the reasons we have given, the judgments of the district court s are

AFFIRMED.