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-

RSM 
2 FORBES MEDIA LLC V. UNITED STATES 

 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, the 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.
FORBES MEDIA LLC V. UNITED STATES 3

access to third-party All Writs Act technical assistance 

materials relating to ongoing criminal investigations 

involving unexecuted arrest warrants.

Under the All Writs 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 States 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 right 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 PressEnter. Co. v. Superior Court, 478 U.S. 1, 7 (1986), and 

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 executing 
4 FORBES MEDIA LLC V. UNITED STATES 

arrest warrants. By all accounts, these proceedings have 

traditionally taken 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 lawenforcement 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-cutting AWA third-party technical 

assistance proceedings, grand jury proceedings, and preindictment search warrant materials, as a matter of 

analogical reasoning, the materials petitioners sought here 

were not within the common law right of access. Finally, 

and 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. 
FORBES MEDIA LLC V. UNITED STATES 5

Joshua K. Handell (argued), Attorney, Appellate Section, 

Criminal Division; Lisa H. Miller, Deputy Assistant 

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 California; 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, 

Washington; 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 Kaufman, 

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, Stanford 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 FORBES MEDIA LLC V. UNITED STATES

OPINION

BRESS, Circuit 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. We 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. We affirm.

I

The 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 federal 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, 172 (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 Writs 
FORBES MEDIA LLC V. UNITED STATES 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 suspect under an 

outstanding warrant, or that will otherwise aid an 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 an 

iPhone belonging to a shooter in the San Bernardino 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.). According 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. application, the Department of Justice

requested an AWA order compelling Sabre, an online travelbooking 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 an individual subject to an active warrant. The S.D. Cal.
8 FORBES MEDIA LLC V. UNITED STATES

application explained that Sabre “processes roughly one 

third of all air travel reservations,” and that other courts had

previously invoked the AWA to order Sabre to assist in the 

execution of arrest warrants. For support, the government’s 

S.D. Cal. application specifically cited 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 entitled: “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 the 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 the 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. application. Each 

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 States 
FORBES MEDIA LLC V. UNITED STATES 9

had obtained arrest warrants but had been thus far unable to 

make the arrests.

1 

The district courts in California and Washington denied 

petitioners’ motions. For similar reasons, the courts

concluded that there is 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 has a compelling interest in non-disclosure 

while the criminal investigations remain ongoing. Both 

courts also found that releasing the sealed information with 

redactions would not adequately protect the government’s 

interests in ensuring that active criminal investigations are 

not jeopardized. The only notable 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 became 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. We have jurisdiction under 28 U.S.C. § 1291.

II

Matters decided in the courts are often of considerable 

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 orders are used to enlist private 

companies to assist in criminal investigations. The 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 FORBES MEDIA LLC V. UNITED STATES

And greater public attention does not inevitably mean 

greater disclosure when competing interests are at stake.

The First Amendment and common law rights to public 

access that petitioners invoke are neither all-encompassing 

nor absolute. In this case, we hold that those rights are not 

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. Whether the 

analysis would be different when the arrests have been made

and the criminal investigations completed 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 the 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. of 

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. 596, 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.
FORBES MEDIA LLC V. UNITED STATES 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 to 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, but 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 example because, in that context, opening 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. of 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. at 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,” Oregonian 
12 FORBES MEDIA LLC V. UNITED STATES

Publ’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 “experience” and “logic” analysis, we 

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, we 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 same is true of preindictment search warrant proceedings. And in 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 the government’s ex parte 

applications, which courts consider in camera. Id. at 1214. 
FORBES MEDIA LLC V. UNITED STATES 13

We concluded that because the 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 criminal 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 here, as in

both Times Mirror and the grand jury context, “there is no 

history of unrestricted access” to the materials petitioners 

seek. Id.

Trying a different angle, petitioners 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 public, 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 is far too formalistic. Any 

similarity between AWA technical assistance proceedings 

and typical requests for injunctive relief—which do not 
14 FORBES MEDIA LLC V. UNITED STATES

fairly approximate AWA proceedings anyway—is 

insufficient 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.” PressEnterprise 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 openly.” Id. at 8–9. 

We have thus made clear that “[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 

process in question.’” United States v. Index Newspapers, 

766 F.3d 1072, 1087–88 (9th Cir. 2014) (quoting PressEnterprise Co. II, 478 U.S. at 8). 

In this case, we conclude that public access would not 

play a significant positive role in the functioning of AWA 

technical assistance proceedings involving outstanding

arrest warrants that remain sealed. Indeed, far from playing 

a significant positive role, allowing public access in these 

circumstances would likely have deleterious consequences. 
FORBES MEDIA LLC V. UNITED STATES 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 acknowledged the 

potential benefits of public access, noting that “open warrant 

proceedings might operate as a curb on prosecutorial or 

judicial misconduct.” Id. 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 

Mirror, and they do not do so here. In Times Mirror, “logic” 

did not support public access because the “clearly 

legitimate” interests supporting disclosure 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 warrant 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 to 
16 FORBES MEDIA LLC V. UNITED STATES

avoid encouraging suspects to flee the jurisdiction. Id. at 

1215–16. 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 reasoning supports our analysis under the “logic” 

prong here. Providing public access to AWA technical 

assistance proceedings in support of unexecuted sealed 

arrest warrants could easily expose sensitive lawenforcement 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.

Criminal actors not yet subject to investigation might also 

catch on to the government’s broader investigatory methods. 

This could make it harder to catch fugitives, who might

change their practices to avoid capture. Public disclosure

could also, among other 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 Jared Brown that lays out how the public 

disclosure of AWA technical assistance proceedings and 

records could impede criminal investigations. We find this 

declaration persuasive. It confirms that publicizing the 

details of secret law enforcement efforts to arrest suspected 

wrongdoers “would hinder, rather than facilitate, . . . the 

government’s ability to conduct criminal investigations.” 
FORBES MEDIA LLC V. UNITED STATES 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. See 873 F.2d at 1215–16, 

1218. Faced with that precedent, petitioners theorize that the 

risk of government overreach is greater here than it was in 

Times Mirror. In particular, petitioners 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. Although 

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: search 

warrants are not invariably the subject of legal challenges, 

nor do they invariably lead to prosecutions.
18 FORBES MEDIA LLC V. UNITED STATES

Regardless, the notion that technical assistance 

proceedings will forever 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 suspects themselves or by

entities like Sabre, who receive the AWA orders. Cf. United 

States v. Mountain States Tel. & Telegraph Co., 616 F.2d 

1122, 1132–33 (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.”). Petitioners and others also

remain free to raise their concerns with the political

branches, 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. “Logic,” 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.
FORBES MEDIA LLC V. UNITED STATES 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 access’ 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 seeking 

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 detailing 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.” United 
20 FORBES MEDIA LLC V. UNITED STATES

States v. Bus. of Custer Battlefield Museum & Store, 658 

F.3d 1188, 1197 n.7 (9th Cir. 2011). The question here, 

however, is whether the rights 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 preindictment 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-cutting 

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, 

petitioners 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, 256 F. Supp. 3d 246, 252 

(E.D.N.Y. 2017); In re Application of the United 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, 411 (W.D. Mo. 1976). 
FORBES MEDIA LLC V. UNITED STATES 21

We do not agree. We doubt that a scattered set of nonbinding 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 not 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 “important 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 midst 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 proceedings. Neither 

persuades us. First, petitioners argue that disallowing access 

to these proceedings “would deny Congress the insight 
22 FORBES MEDIA LLC V. UNITED STATES

necessary to craft better-tailored legislation” in this area. 

But there is no basis to believe that Congress needs our 

assistance on this front. Congress’s ability to obtain 

information does not depend on the efforts of private 

litigants like petitioners because Congress 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 branch’s 

alleged need for information when that branch has sufficient 

means at its disposal for obtaining the 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 investigatory 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.”
FORBES MEDIA LLC V. UNITED STATES 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 access.

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 which 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 proceedings.”); 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 Publ’g Co., 920 F.2d at 1465 (“[W]e 

must decide whether the type of proceeding at issue has 
24 FORBES MEDIA LLC V. UNITED STATES

traditionally been conducted in an open fashion.”). This is 

the same analysis we conducted above.

In advancing their different approach, petitioners 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 refuse to testify, the district court 

held contempt proceedings. Id. Those portions of the 

contempt proceedings 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 id 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 closed 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 the 
FORBES MEDIA LLC V. UNITED STATES 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 1086 (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, 

grand 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 were ancillary 

to an 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 1213). 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, we regarded the open contempt proceeding as 

“better resembl[ing] a criminal trial than . . . a grand jury 

proceeding.” Id. at 1089 (quoting United States v. Guerro, 

693 F.3d 990, 1001 (9th Cir. 2012)). From that crucial 

premise, we reasoned that the public may have a qualified

right of access 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’s 
26 FORBES MEDIA LLC V. UNITED STATES

investigation or jeopardize other witnesses or evidence.” Id. 

We similarly concluded that “because of the hearings’

similarities to criminal trials,” the orders of contempt and 

confinement were 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 proceedings 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, we homed in on the fact that a contempt 

proceeding for refusal to testify before a grand jury 

effectively straddles the traditional secrecy of grand jury 

proceedings and the traditional openness of a criminal trial. 

See id. at 1089, 1093. The contempt proceedings, 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, this

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 

parsing 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 directed 
FORBES MEDIA LLC V. UNITED STATES 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 most 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 would 

be different once the suspect is caught and the criminal 

investigation concluded. Compare Times Mirror, 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 for docket sheets or for 

any other specific type of record.
28 FORBES MEDIA LLC V. UNITED STATES

at 1211 (holding that “members of the public have no right 

of access to search warrant materials while a pre-indictment 

investigation is under way,” but reserving “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 Business 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, the district court in the Northern 

District of California anticipated this potential distinction

and sua sponte ordered the government to give notice when 

its investigation closes or becomes 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 picking up on the Northern District’s lead, 

petitioners now ask us to impose similar requirements in the 

Western District of Washington case. Petitioners further ask 

us to preemptively order unsealing once the relevant 

criminal investigations end. In the exercise of our discretion, 

we 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 

or to issue blanket rules that transcend the case before us. 
FORBES MEDIA LLC V. UNITED STATES 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 

events, 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 an arrest warrant is executed and a 

criminal investigation concluded.

III

We briefly address post-argument developments 

involving 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 unsealing in those other courts, too.

In the Eastern District of Virginia case, United States v. 

Burkov, No. 1:15-cr-00245 (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 always 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 grand 
30 FORBES MEDIA LLC V. UNITED STATES

concession, we think the government’s position 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.

The 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 Forbes Media LLC, 2022 WL 17369017, at 

*9 (W.D. Pa. Dec. 2, 2022). Brewster and Forbes moved to 

unseal the same types of AWA materials they sought here.

On 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, 

the 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 Circuit 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 the 
FORBES MEDIA LLC V. UNITED STATES 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 with our court in late 

December 2022, after oral argument in this case.

Without 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 our 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, petitioners 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, at 

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 the district 
32 FORBES MEDIA LLC V. UNITED STATES

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 courts, as appropriate. See Fed. 

R. Civ. P. 60. But recent developments in the Western 

District of Pennsylvania do not undermine the district courts’ 

decisions here 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 courts are

AFFIRMED.