NOT FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES DEPARTMENT OF JUSTICE; FACEBOOK, INC.,

Respondents

- Appellees,

v.

AMERICAN CIVIL LIBERTIES UNION FOUNDATION; et al.,

Movants

- Appellants,

and

WP COMPANY LLC, DBA The Washington Post,

Movant. No. 19

- 15472

D.C. No.

1:18

- mc

- 00057

- LJO

- EPG

MEMORANDUM *

UNITED STATES DEPARTMENT OF JUSTICE; FACEBOOK, INC.,

Respondents

- Appellees,

v.

WP COMPANY LLC, DBA The Washington Post, No. 19

- 15473

D.C. No.

1:18

- mc

- 00057

- LJO

- EPG

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36

- 3. 

# FILED

JUL 22 2020

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS2 Movant

- Appellant,

and

AMERICAN CIVIL LIBERTIES UNION FOUNDATION; et al.,

Movants.

Appeal from the United States District Court

for the Eastern District of California Lawrence J. O'Neill, District Judge, Presiding

Argued and Submitted April 28, 2020 Seattle, Washington

Before: McKEOWN, N.R. SMITH, and NGUYEN, Circuit Judges.

T he American Civil Liberties Union, the Electronic Frontier Foundation, and

the Washington Post appeal from the district court’s denial of motion s to unseal

various contempt proceeding documents related to a technic al assistance wiretap

order under 1 8 U.S.C. § 2518(4) . We have jurisdiction under 28 U.S.C. § 1291

,

and we affirm.

We r eview de novo whether a right of access to certain records or

proceedings exists under the First Amendment or the common law. United Stat es

v. Carpenter , 923 F.3d 1172, 1178 (9th Cir. 2019). To determine whether a First

Amendment right of access attaches to particular proceedings or records, we

consider (1) “whether the place and process have historically been open to the

press and general public,” and (2) “whether public access plays a significant3

positive role in the functioning of the particular process in question.” Press

Enterprise Co. v. Su

perior Court , 478 U.S. 1, 8 (1986) . Because the materials at

issue here do not pass this “experience and logic” test , a qualified First

Amendment right of access does not exist

. The documents have not historically

been open to the general public during an investigation

. A nd , because of the

ongoing nature of the investigation

, the benefits of open proceedings are “more

than outweighed by the damage to the criminal investigatory process.” See Times

Mirror Co. v. United States , 873 F.2d 1210, 1215 (9th Cir. 19 89).

We decline to consider whether there is a separate common law right of

access to the documents because any presumption in favor of access would be

outweighed by a compelling government interest in maintaining secrecy in an

ongoing investigation

. S

ee United States v. Index Newspapers LLC , 766 F.3d 1072,

1090 (9th Cir. 2014) ( refusing to consider “ whether there is a common law right of

access to the transcripts of th e closed portion of the contempt hearing because,

even if there is such a right, the government ’s interest in grand jury secrecy is a

sufficiently important countervailing interest that overcomes any common law

presumption in favor of access ” ) (internal citations

, quotation marks , and

alterations omitted)

.

AFFIRMED

.