USA v. Winner

MEMORANDUM OF LAW in Support

S.D. Ga.March 7, 2019

FILED U.S. DISTRICT COURT AUGUCTa 0:V. 2019 HAR-7 PH U-23 IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF GEORGIARI^ AUGUSTA DIVISION ^0. D b i. UNITED STATES, V. REALITY WINNER Case No. l:17-cr-34 (JRH) (BKE) MEMORANDUM OF LAW IN SUPPORT OF REPORTERS COMMITTEE FOR FREEDOM OF THE PRESS'S MOTION TO INTERVENE FOR THE LIMITED PURPOSE OF SEEKING ACCESS TO CERTAIN SEALED COURT RECOIUOS RELATED TO THIS ACTION David E. Hudson Ga. Bar No. 374450 Hull Barrett SunTrust Bank Building, 801 Broad Street Seventh Floor Augusta, GA 30901 Tel: (706) 722-4481 Peter C. Canfield Ga. Bar No. 107748 Meredith C. Kincaid Ga. Bar No. 148549 Jones Day 1420 Peachtree Street, NE, Suite 800 Atlanta, GA 30309 Tel: (404) 521-3939 Counsel ofRecord for Applicant the Reporters Committee for Freedom of the Press Bruce D. Brown* Katie Townsend* Linda Moon* The Reporters Committee for Freedom of the Press 1156 15th St. NW, Suite 1020 Washington, DC 20005 Tel: (202) 795-9300 *0/Counsel for Applicant the Reporters Committee for Freedom ofthe Press Case 1:17-cr-00034-JRH-BKE Document 334 Filed 03/07/19 Page 1 of 32 TABLE OF CONTENTS Page TABLE OF AUTHORITIES " PRELIMINARY STATEMENT 1 FACTUAL BACKGROUND 2 ARGUMENT 5 I. The Press and the Public Have a Strong Interest In Access To The Sealed Warrant Materials, PR/TT Materials, and Section 2703(d) Materials 5 II. The Press and the Public Have a Constitutional and Common Law Right to Access the Sealed Warrant Materials, PR/TT Materials, and Section 2703(d) Materials 9 A. The First Amendment and Common Law Rights of Access Apply to Warrant Materials 10 B. The First Amendment and Common Law Rights of Access Apply to the Section 2703(d) and PR/TT Materials 14 in. The Press and the Public Have Both a Constitutional and Common Law Right of Access to Court Docket Sheets Reflecting the Warrant Materials, PR/TT Materials, and Section 2703(d) Materials 19 IV. The Government Cannot Meet Its Burden to Overcome the Presumption of Access to the Warrant Materials, PR/TT Materials, and Section 2703(d) Materials 20 A. The Government Cannot Demonstrate a Compelling Interest That Justifies the Continued Sealing of the Warrant, Section 2703(d), and PR/TT Materials 20 B. The Government Cannot Overcome the Strong Common Law Presumption in Favor of Disclosure of the Warrant, Section 2703(d), and PR/TT Materials 21 CONCLUSION 22 Case 1:17-cr-00034-JRH-BKE Document 334 Filed 03/07/19 Page 2 of 32 TABLE OF AUTHORITIES Page Federal Cases Ball Sun Co. v. Goetz, 886 F.2d 60 (4th Cir. 1989) 13, 14 Chicago Tribune Co. v. Bridgestone/Firestone, Inc., 263 F.3d 1304 (11th Cir. 2001) passim Doe V. Pub. Citizen, 749 F.3d 246 (4th Cir. 2014) 19 Hartford Courant Co. v. Pellegrino, 380 F.3d 83 (2d Cir. 2004) 19 Hesed El v. Poff, No. l:18-CV-079,2018 WL4688720 (S.D. Ga. Sept. 28,2018) 13 In re Alexander Grant & Co. Litigation, 820 F.2d 352 (11th Cir. 1987) 5 In re App. of Leopold to Unseal Certain Elec. Surveillance Appls. & Orders, 300 F. Supp. 3d 61 (D.D.C. 2018) 16 In re Appl. ofN. Y. Times Co. for Access to Certain Sealed Court Records, 585 F. Supp. 2d 83 (D.D.C. 2008) 10,11,15, 16 In re Appl. ofNewsday, Inc., 895 F.2d 74 (2d Cir. 1990) 14 In re the Appl. ofReporters Comm. for Freedom of the Press for Access to Certain Sealed Court Records (Donald Sachtleben), 17-mc-8 (S.D. Ind. June 12, 2017), ECF No. 3 8 In re the Appl. ofReporters Comm. for Freedom of the Press for Access to Certain Sealed Court Records (Terry Albury), 18-mc-85 (D. Minn. Nov. 29, 2018), ECF No. 6 8, 9,23 Case 1:17-cr-00034-JRH-BKE Document 334 Filed 03/07/19 Page 3 of 32 In re the Appl. ofReporters Comm. for Freedom of the Press for Access to Certain Sealed Court Records (Thomas Andrew Drake), 17-CV-169 (D. Md. June 27,2017), ECF No. 18 8 In re Appl. of the U.S. for an Order Pursuant to 18 U.S.C. Section 2703(d), 830 F. Supp. 2d 114 (E.D. Va. 2011) 17,20,21 In re Four Search Warrants, 945 F. Supp. 1563 (N.D. Ga. 1996) 13 In re Macon Tel. Pub. Co., 900 F. Supp. 489 (M.D. Ga. 1995) 13,14 In re Petition of Tribune Co., 784 F.2d 1518 (11th Cir. 1986) 5 In re Sealing & Non-Disclosure of PR/TT/2703(D) Orders, 562 F. Supp. 2d 876 (S.D. Tex. 2008) 17 In re Search of Fair Finance, 692 F.3d 424 (6th Cir. 2012) 14 In re Search Warrant for Secretarial Area Outside Office of Gunn, 855 F. 2d 569 (8th Cir. 1988) passim In re United States for an Order Pursuant to 18 U.S.C. Section 2703(D), 707 F.3d 283 (4th Cir. 2013) 16, 17, 18, 19 in the matter of United States v. Reality Winner, Case No. 1:17-cr-34 (S.D. Ga. 2017) 22 Matter of Appl. & Aff. for a Search Warrant, 923 F.2d 324 (4th Cir. 1991) 14 Matter of the Appl. ofWP Co., No. 16-mc-351 (BAH), 2016 WL 1604976 (D.D.C. Apr. 1, 2016) 8, 10, 12 Matter of Search of Office Suites for World & Islam Studies Enter., 925 F. Supp. 738 (M.D. Fla. 1996) 12, 13 111 Case 1:17-cr-00034-JRH-BKE Document 334 Filed 03/07/19 Page 4 of 32 Newman V. GraddicK 696 F.2d 796 (11th Cir. 1983) 6,10,20 Nixon V. Warner Commc 'ns, 435 U.S. 589 (1978) 9 Press-Enter. Co. v. Superior Courts 464 U.S. 501 (1984) 6,20 Press-Enter. Co. v. Superior Courts 478 U.S. 1 (1986) 9 Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555 (1980) 6,7 Sheppard v. Maxwell, 384 U.S. 333 (1966) 6 Smith V. U.S. District Court, 956 F.2d 647 (7th Cir. 1992) 7, 21 Times Mirror Co. v. United States, 873 F.2d 1210 (9th Cir.1989) 13 Tri-Cty. Wholesale Distributors, Inc. v. Wine Grp., Inc., 565 F. App'x 477 (6th Cir. 2012) 19 United States v. Amodeo, 71 F.3d 1044 (2d Cir. 1995) 21 United States v. Aref, 533 F.3d 72 (2d Cir. 2008) 7 United States v. Business of Custer Battlefield Museum and Store, 658 F.3d 1188 (9th Cir. 2011) 14 United States v. Cohen, 18-cr-602 (WHP) (S.D.N.Y. Feb. 7,2019) 13 United States v. El-Sayegh, 131 F.3d 158 (D.C. Cir. 1997) 15 - IV Case 1:17-cr-00034-JRH-BKE Document 334 Filed 03/07/19 Page 5 of 32 United States v. Gonzales, 150 F.3d 1246 (10th Cir. 1998) 15 United States v. Kotty 380 F. Supp. 2d 1122 (C.D. Cal. 2004), affd on other grounds, 135 Fed. App'x 69 (9th Cir. 2005) 11 United States v. Loughner, 769 F. Supp. 2d 1188 (D. Ariz. 2011) 11 United States V. Ochoa-Vasquez, 428 F.3d 1015 (11th Cir. 2005) 10 United States v. Shenberg, 791 F. Supp. 292 (S.D. Fla. 1991) 12 United States V. Valenti, 987 F.2d 708 (11th Cir. 1993) 9,10,19, 20 United States v. Winner, No. l:17-cr-34 (JRH) (BKE) (S.D. Ga. Aug. 23,2018), ECF No. 324 2, 3, 4 Federal Statutes 18U.S.C 1 18 U.S.C.§ 793(e) 2 18U.S.C. §§ 2701-2712 1 18 U.S.C. § 2703 (a), (b)(1), (c)(l)-(2) 5 18 U.S.C.§ 2703(d) passim 18 use. §2702(d), 13-mc-460 8 18 U.S.C. § 2703 of the Stored Communications Act 5 18 U.S.C. §§3121-3127 1,5 18 U.S.C. §3123(a)(1) 15,16,18 Case 1:17-cr-00034-JRH-BKE Document 334 Filed 03/07/19 Page 6 of 32 Espionage Act ^ Pen Register Act ^ Pen Register and Trap and Trace Devices Under the Foreign Intelligence Surveillance Act ^ SCA passim Stored Communications Act ^ Rules Federal Rule of Criminal Procedure 41 15 Regulations 28 C.F.R. §50.10 12 Order Granting Mot. to Unseal, Winner 3 Constitutional Provisions First Amendment passim Fourth Amendment 11 Other Authorities Amanda Holpuch, Reality Winner: NSA contractor jailed for five years over classified report leak, Guardian, Aug. 23,2018, https://perma.cc/MA2N- 5VFK: 4 Ann E. Marimow, Justice Department's scrutiny ofFox News reporter James Rosen in leak case draws fire, Wash. Post, May 20,2013 11 Billy Perrigo, President Trump Calls 5-Year Prison Sentence for NSA Whistleblower Reality Winner 'Unfair,' Time, Aug. 24, 2018, https://perma.cc/G936-JBXV 4 Charlie Savage et at. Reality Winner, NS.A. Contractor Accused ofLeak, Was Undone by Trail of Clues, N.Y. Times, June 6, 2017 4 - VI - Case 1:17-cr-00034-JRH-BKE Document 334 Filed 03/07/19 Page 7 of 32 Election, Intercept, June 5, 2017, httDs://Derma.cc/H48N-RUZD 4 Erik Wemple, Seizing Journalists' Records: An Outrage That Obama 'Normalized' For Trump, Wash. Post, June 8, 2018 8 Fox News 8, 11,12 , https://perma.cc/090D-AXVU: ! 4 (June 2015), httDs://oig.iustice.gov/reports/2015/-o1506.pdf 5 Keep Rosen's Warrant Secret, New Yorker, May 24, 2013, http://bit.lv/lTD3How 12 Kerry Howley, 'The World's Biggest Terrorist Has a Pikachu Bedspread,' n. Y 4 NY. Times 10 Press-Enterprise 1 20 Press-Enterprise II 11 The Washington Post 12 Suspects Id^U 3 478 U.S. at 13-14 20 Vll Case 1:17-cr-00034-JRH-BKE Document 334 Filed 03/07/19 Page 8 of 32 PRELIMINARY STATEMENT The Reporters Committee for Freedom of the Press (the "Reporters Committee") moves to intervene in this case for the limited purpose of seeking access to certain sealed court records related to the action, specifically, any and all applications and supporting documents, including affidavits, conceming the completed "leak" investigation and now-concluded criminal prosecution of Reality Leigh Winner ("Winner") (hereinafter, the "Winner Matter") seeking any of the following; any court orders granting or denying any of the following; and any other court records related to the following, such as retums, motions to seal, and docket sheets: • any search warrant, regardless of whether the warrant was issued or executed, including warrants under the Stored Communications Act ("SCA"), see 18 U.S.C. §§ 2701-2712, that relates to the Winner Matter (collectively, "Warrant Materials"); • authorization for the use of any pen register or trap and trace device pursuant to 18 U.S.C. §§3121-3127, regardless of whether such authorization was granted or a pen register or trap and trace device was used, that relates to the Winner Matter (collectively, "PR/TT Materials"); and • any order pursuant to 18 U.S.C. § 2703(d) of the SCA, regardless of whether or not the order was issued or executed, that relates to the Winner Matter (collectively, "Section 2703(d) Materials"). Contrary to the constitutional and common law presumptions of public access to court records, court filings of this type are routinely maintained under seal indefinitely, without any compelling or countervailing interest necessitating such sealing, and are generally not reflected on publicly available dockets. Accordingly, the Reporters Committee does not Icnow the Case 1:17-cr-00034-JRH-BKE Document 334 Filed 03/07/19 Page 9 of 32 magistrate case number(s) associated with the Warrant Materials, PR/TT Materials, and Section 2703(d) Materials it seeks to unseal. The United States government's prosecution of Winner for disclosing classified national defense information to a news media outlet was and remains the subject of intense public interest. Unsealing the Warrant Materials, PR/TT Materials, and Section 2703(d) Materials will shed light on the government's investigation and prosecution of Winner, which has now concluded, and will also provide the public and the press with valuable insight into the government's approach to so-called *'leak" investigations and prosecutions more generally. In particular, unsealing of these materials will help inform the press and the public about the government's use of electronic surveillance tools like PR/TT devices and Section 2703(d) orders in connection with such investigations. FACTUAL BACKGROUND 1. The government's investigation and prosecution of Winner for disclosing information to a news media outlet. From in or about February 2017 through in or about June 2017, Winner was employed as a contractor with a private corporation and was assigned to the National Security Agency ("NSA"), during which time she held a TOP SECRET//Sensitive Compartmented Information ("SCI") security clearance and had access to national defense and classified information. See Plea Agreement 2a, United States v. Winner, No. l:17-cr-34 (JRH) (BKE) (^'"Winnef) (S.D. Ga. Aug. 23, 2018), EOF No. 324; Gov't's Sentencing Mem. at 1, Winner (S.D. Ga. Aug. 14,2018), ECFNo. 320. On June 26,2018, Winner pled guilty in this Court to one count of unlawful retention and transmission of national defense information, in violation of 18 U.S.C. § 793(e)). See Change of Case 1:17-cr-00034-JRH-BKE Document 334 Filed 03/07/19 Page 10 of 32 Guilty Plea, Winner (S.D. Ga. June 26,2018), ECF No. 316; Plea Agreement ̂ 1; Superseding Indictment, Winner (S.D. Ga. Sept. 6,2017), ECF No. 72. The Court accepted Winner's guilty plea and, on August 23,2018, sentenced her to 63 months' imprisonment, followed by three years of supervised release, and ordered her to pay a $100 assessment. See Judgment, Winner (S.D. Ga. Aug. 24,2018), ECF No. 327. The Superseding Indictment states that on or about May 9,2017 Winner "printed and improperly removed classified intelligence reporting... and unlawfully retained it." Superseding Indictment ̂ 11. It further states that on or about May 9,2017 Winner "unlawfully transmitted the intelligence reporting to an online news outlet (the "News Outlet")." /o?. ̂ 13. In the Plea Agreement, Winner agreed to a set of facts, including to the fact that "[o]n or about May 9,2017, [she] unlawfully transmitted the Intelligence Report" to the News Outlet, which was "not authorized to receive or possess the Intelligence Report." Plea Agreement 2m-2n. On June 3,2017, a search warrant was executed at Winner's residence. Gov't's Sentencing Mem. at 2; Appl. for a Search Warrant, Winner (S.D. Ga. June 3,2017), ECF No. 1. The application and search warrant were initially filed under seal, but were unsealed on June 5, 2017 upon the government's motion to unseal after the criminal complaint and arrest warrant had been issued and filed publicly. Gov't's Mot. to Unseal 2-5, Winner (S.D. Ga. June 5,2017), ECF No. 3; Order Granting Mot. to Unseal, Winner (S.D. Ga. June 5,2017), ECF No. 4. On June 5, 2017, The Intercept published the classified Intelligence Report that Winner admitted to have "removed" from its authorized location, "unlawfully retained," and "unlawfully transmitted" to the News Outlet. Plea Agreement 2h, 2m; Matthew Cole et al., Top-Secret Case 1:17-cr-00034-JRH-BKE Document 334 Filed 03/07/19 Page 11 of 32 NSA Report Details Russian Hacking Effort Days Before 2016 Election, Intercept, June 5,2017, https://perma.cc/H48N-RUZD. Winner is the first person to be sentenced under the Espionage Act under the Trump administration for disclosing classified information to a news outlet, and the government's investigation and prosecution of Winner have been a subject of intense public interest and extensive media coverage. See, e.g., Charlie Savage et al., Reality Winner, N.S.A. Contractor Accused of Leak, Was Undone by Trail of Clues, N.Y. Times, June 6,2017, https://perma.cc/F9KR-67RB: Kerry Howley, 'The World's Biggest Terrorist Has a Pikachu Bedspread,' N.Y. Magazine, Dec. 25,2017, https://perma.cc/090D-AXVU; Amanda Holpuch, Reality Winner: NSA contractor jailed for five years over classified report leak. Guardian, Aug. 23,2018, https://Derma.cc/MA2N-5VFK: Billy Perrigo, President Trump Calls 5-Year Prison Sentence for NSA Whistleblower Reality Winner 'Unfair,' Time, Aug. 24, 2018, https://Derma.cc/G936-JBXV. 2. Warrant Materials, PR/TT Materials, and Section 2703(d) Materials related to the Winner Matter remain under seal. Documents filed with the Court in the Winner prosecution indicate that the government sought and obtained at least one search warrant in connection with the Winner Matter. See Appl. for a Search Warrant. The affidavit filed in support of the application for that search warrant states that the govemment determined that Winner "had e-mail communication with the News Outlet on or about March 30, 2017, and March 31, 2017." Aff. of Justin C. Garrick 16, Winner (S.D. Ga. June 3, 2017), ECF No. 1-3. Thus, the govemment may have also obtained additional 4- Case 1:17-cr-00034-JRH-BKE Document 334 Filed 03/07/19 Page 12 of 32 search warrants, including warrants under the SCA, pen register or trap and trace orders,' and/or Section 2703(d) orders^ from the district court in the course of its investigation. The Reporters Committee is not aware of any other search warrants, orders authorizing the use of pen registers and/or trap and trace devices, or Section 2703(d) orders, or any applications or other materials related thereto, connected to the Winner Matter that have been unsealed. The Reporters Committee therefore requests that any and all such court records— including docket sheets—^be unsealed, and that, to the extent necessary to facilitate such unsealing, the U.S. Attorney's Office be directed to provide a list of the specific magistrate case numbers associated with the applications and orders sought to be unsealed by this Motion. ARGUMENT I. The Press and the Public Have a Strong Interest In Access To The Sealed Warrant Materials, PR/TT Materials, and Section 2703(d) Materials. The right of the press and public to intervene to seek access to court records has long been beyond dispute. See, e.g., In re Petition of Tribune Co., 784 F.2d 1518, 1521 (If'' Cir. 1986) ("The press has standing to intervene in actions in which it is otherwise not a party in order to petition for access to court proceedings and records."); In re Alexander Grant & Co. ' Pen registers and trap and trace devices are law enforcement surveillance tools the use of which is governed by 18 U.S.C. §§ 3121-3127 (the "Pen Register Act" or "PRA")."Pen registers record telephone numbers, e-mail addresses, and other dialing, routing, addressing, or signaling information that is transmitted by instruments or facilities—^such as telephones or computers—that carry wire or electronic communications." OIG, A Review of the FBI's Use ofPen Register and Trap and Trace Devices Under the Foreign Intelligence Surveillance Act in 2007 through 2009 — Executive Summary at 1 (June 2015), https://oig.iusticc.gov/reports/2015/-ol 506.pdf. "Trap and trace devices record similar information that is received by such instruments or facilities." Id. ^ Under 18 U.S.C. § 2703 of the Stored Communications Act ("SCA") a court may issue an order authorizing the government to, inter alia, require electronic communication service or remote computing service providers to disclose certain communications metadata related to a subscriber or customer. 18 U.S.C. § 2703 (a), (b)(1), (c)(l)-(2). 5- Case 1:17-cr-00034-JRH-BKE Document 334 Filed 03/07/19 Page 13 of 32 Litigation, 820 F.2d 352, 254 (11th Cir. 1987); Newman v. Graddick, 696 F.2d 796, 800 (11th Cir. 1983). [PCCl] Openness is "an indispensable attribute" of our judicial system. Richmond Newspapers, Inc. V. Virginia, 448 U.S. 555, 569 (1980). It guards against unfairness and inequity in the application of laws, as "the sure knowledge that anyone is free to attend gives assurance that established procedures are being followed and that deviations will become known." Press-Enter. Co. V. Superior Court, 464 U.S. 501,508 (1984) {^'Press-Enterprise F). And, perhaps just as importantly, access "fosters an appearance of fairness, thereby heightening public respect for the judicial process," and "permits the public to participate in and serve as a check upon the judicial process—an essential component in our stmcture of self-government." Newman v. Graddick, 696 F.2d 796, 801 (11th Cir. 1983) (quoting Globe Newspaper Co. v. Superior Court for Norfolk Cty., 457 U.S. 596, 606 (1982)). "People in an open society do not demand infallibility from their institutions, but it is difficult for them to accept what they are prohibited from observing." Richmond Newspapers, 448 U.S. at 572. The U.S. Supreme Court has recognized that the news media plays a vital role in facilitating public monitoring of the judicial system. A responsible press has always been regarded the handmaiden of effective judicial administration, especially in the criminal field The press does not simply publish information about trials but guards against the miscarriage of justice by subjecting the police, prosecutors, and judicial processes to extensive public scrutiny and criticism. Sheppardv. Maxwell, 384 U.S. 333, 350 (1966). Thus, "[w]hile media representatives enjoy the same right of access as the public," they frequently "function[] as surrogates for the public" by. 6- Case 1:17-cr-00034-JRH-BKE Document 334 Filed 03/07/19 Page 14 of 32 for example, attending proceedings, reviewing court documents, and reporting on judicial matters to the public at large. Richmond Newspapers, 448 U.S. at 573. For these reasons, it is well-settled that the public and the press have a right of access to court documents, generally, that arise from the public's interest in observing the consideration and disposition of matters by federal courts. See Chicago Tribune Co. v. Bridgestone/Firestone, Inc., 263 F.3d 1304,1310-11, 1314 (11th Cir. 2001) (^'Bridgestone/Firestone") (recognizing the media and the public's qualified First Amendment and common law right of access to criminal and civil proceedings but holding that such a right does not extend to materials exchanged during discovery). The public's right of access is especially strong in matters, like the Winner Matter, that concern actions taken by the executive branch. As the U.S. Court of Appeals for the Seventh Circuit has explained, "in such circumstances, the public's right to know what the executive branch is about coalesces with the concomitant right of the citizenry to appraise the judicial branch." Smith v. U.S. District Court, 956 F.2d 647, 650 (7th Cir. 1992) i^'Smith") (quoting F.T.C. V. Standard Fin. Mgmt. Corp., 830 F.2d 404,410 (1st Cir. 1987)); see also United States V. Aref, 533 F.3d 72, 83 (2d Cir. 2008) (stating the "courts must impede scrutiny of the exercise of [judicial] judgment only in the rarest of circumstances," especially "when a judicial decision accedes to the requests of a coordinate branch"). Further, the press and the public have a particularly powerful interest in obtaining access to the specific court records that are the subject of this Motion. The government routinely uses warrants, orders authorizing the use of pen registers and trap and trace devices, and Section 2703(d) orders in leak investigations and prosecutions of individuals for unauthorized -7- Case 1:17-cr-00034-JRH-BKE Document 334 Filed 03/07/19 Page 15 of 32 disclosures of information to members of the news media, and they raise particular concerns when they are used to obtain journalists' communications records. See Erik Wemple, Seizing Journalists' Records: An Outrage That Obama 'Normalized' For Trump, Wash. Post, June 8, 2018, https://perma.cc/4BCN-YHWR; see also, e.g.,Appl for Search Warrant for E-mail Account [redacted]@gmailcom. No. l:10-mj-00291 (AK) (D.D.C. Nov. 7,2011) (government application for an SCA warrant for e-mail communications of Fox News reporter James Rosen in connection with a leak investigation); In re Appl of the United States for an Order Pursuant to 18 use § 2703(d), 13-mc-460 (AK) (D.D.C. May 7,2013), ECF No. 1 (government application for a Section 2703(d) order for a reporter's electronic communications records in connection with a leak investigation). The Reporters Committee has sought access to warrant, PR/TT, and Section 2703(d) materials in connection with other leak prosecutions post-sentencing, and has successfully obtained those materials in all cases in which it has filed an application, either by court order or by the government's agreement to move to unseal relevant matters. See Order, In re the Appl. of Reporters Comm. for Freedom of the Press for Access to Certain Sealed Court Records (Terry Albury), 18-mc-85 (D. Minn. Nov. 29,2018), ECF No. 6 (granting unopposed application to unseal warrant, PR/TT, and Section 2703(d) materials); Order, In re the Appl. of Reporters Comm. for Freedom of the Press for Access to Certain Sealed Court Records (Thomas Andrew Drake), 17-cv-169 (D. Md. June 27,2017), ECF No. 18 (same); Notice of Voluntary Dismissal Without Prejudice, In re the Appl. ofReporters Comm. for Freedom ofthe Press for Access to Certain Sealed Court Records (Donald Sachtleben), 17-mc-8 (S.D. Ind. June 12, 2017), ECF No. 3 (dismissal upon order granting the government's motions to unseal requested records); Joint Case 1:17-cr-00034-JRH-BKE Document 334 Filed 03/07/19 Page 16 of 32 Stipulation of Dismissal, In re the Appl ofReporters Comm. for Freedom of the Press for Access to Certain Sealed Court Records (John C. Kiriakou), l:17-mc-2 (E.D.V.A. Mar, 23,2017), ECF No. 10 (same); Order, In re the Appl of Reporters Comm. for Freedom of the Press for Access to Certain Sealed Court Records (Jin-Woo Kim)y 16-mc-2193 (D.D.C. Jan. 17,2017), ECF No. 6 (same). Public access to such records related to the Winner Matter are sought for the same purpose, and will provide the public and the press with further insight into the government's pursuit of leak investigations in general, and the Winner Matter, specifically. II. The Press and the Public Have a Constitutional and Common Law Right to Access the Sealed Warrant Materials, PR/TT Materials, and Section 2703(d) Materials. Whether the First Amendment affords a right of access to a document at any particular stage in the criminal process tums on considerations of "experience and logic," i.e. (1) "whether the place and process have historically been open to the press and general public," and (2) "whether public access plays a significant positive role in the functioning of the particular process in question." Press-Enter. Co. v. Superior Courts 478 U.S. 1, 8,9 (1986) ((^Press- Enterprise //"); United States v. Valentin 987 F.2d 708, 712 (11th Cir. 1993). Where the First Amendment right of public access applies, a document may be sealed "only after (1) notice and an opportunity to be heard on a proposed closure; and (2) articulated specific "findings that closure is essential to preserve higher values and is narrowly tailored to serve that interest."Fa/c«//, 987 F.2d at 713 (quoting Press-Enterprise I, 464 U.S. at 510)). The common law also affords a public right of access to judicial records and documents in both civil and criminal cases. See Nixon v. Warner Commc'ns, 435 U.S. 589, 597 (1978); Bridgestone/Firestone, 263 F.3d at 1311 (citing Nixon, 435 U.S. at 597). "This right, like the right to attend judicial proceedings, is important if the public is to appreciate fully the often -9- Case 1:17-cr-00034-JRH-BKE Document 334 Filed 03/07/19 Page 17 of 32 significant events at issue in public litigation and the workings of the legal system." Newman, 696 F.2d at 803 (citations omitted). The common law right of access is a qualified right, which requires a weighing of competing interests. In determining whether countervailing interests overcome the common law right of access in a given case, the district court may "look to whether the records are sought for such illegitimate purposes as to promote public scandal or gain unfair commercial advantage, whether access is likely to promote public understanding of historically significant events, and whether the press has already been permitted substantial access to the contents of the records." Newman^ 696 F.2d at 803 (citing Nixon, 435 U.S. at 598- 603&n.ll). A. The First Amendment and Common Law Rights of Access ApdIv to Warrant Materials, 1. The public has a First Amendment riQht ofaccess to the Warrant Materials at issue. Although the Eleventh Circuit has held that the press and the public have a qualified First Amendment right of access to criminal trial proceedings and records, including dockets, it has not squarely addressed whether this right applies to warrant materials. See Valenti, 987 F.2d at 712; United States v. Ochoa-Vasquez, 428 F.3d 1015, 1028 (11th Cir. 2005). At least one federal court of appeals has held that the First Amendment presumption of access applies to warrant materials regardless of the status of the underlying investigation. In re Search Warrant for Secretarial Area Outside Office of Gunn, 855 F. 2d 569, 573 (8th Cir. 1988), and several district courts have found that warrant materials are subject to constitutional right of access at least in the post-investigation context. See In re Appl. ofN. Y. Times Co. for Access to Certain Sealed Court Records, 585 F. Supp. 2d 83, 94 (D.D.C. 2008) ("/w re N. Y. Times*'); Matter ofthe Appl. ofWP 10 Case 1:17-cr-00034-JRH-BKE Document 334 Filed 03/07/19 Page 18 of 32 Co., No. 16-mc-351 (BAH), 2016 WL 1604976, at *2 (D.D.C. Apr. 1,2016); United States v. Loughner, 769 F. Supp. 2d 1188,1195 (D. Ariz. 2011); United States v. Kott, 380 F. Supp. 2d 1122, 1124-25 (C.D. Cal. 2004), affd on other grounds, 135 Fed. App'x 69 (9th Cir. 2005). As those courts have correctly recognized, both prongs of the Press-Enterprise II "experience and logic" inquiry are satisfied in the context of warrant materials. First, warrant applications and supporting documents are judicial records which "have been historically considered to be open to inspection by the public." In re Gunn, 855 F.2d at 573. As the Eighth Circuit has noted, "although the process of issuing search warrants has traditionally not been conducted in an open fashion, the search warrant applications and receipts are routinely filed with the clerk of court without seal." Id.; see also In re N. Y. Times, 585 F. Supp. 2d at 88. Second, logic strongly favors access to warrant materials because access to them is "important to the public's understanding of the function and operation of the judicial process and the criminal justice system and may operate as a curb on prosecutorial or judicial misconduct." In re Gunn, 855 F.2d at 573. Indeed, "warrant materials are often used to adjudicate important constitutional rights such as the Fourth Amendment protection against unreasonable search and seizures," and access to them allows the public to "ensure that judges are not merely serving as a rubber stamp for the police." In re N. Y. Times, 585 F, Supp. 2d at 90. Moreover, access to warrant materials can shed light on specific matters that raise important issues of public concern. For example, in 2013, it was revealed that, in 2010, FBI had obtained an SCA warrant requiring Google to provide it with the contents of e-mails from the personal e-mail account of a Fox News reporter, James Rosen, in connection with a leak investigation. See Ann E. Marimow, Justice Department's scrutiny of Fox News reporter James - 11 Case 1:17-cr-00034-JRH-BKE Document 334 Filed 03/07/19 Page 19 of 32 Rosen in leak case draws fire. Wash. Post., May 20,2013, https'.//p6niia.cc/U25E-9AFU. Rosen was reportedly unaware of the warrant's existence until it was reported in The Washington Post. See Ryan Lizza, How Prosecutors Fought to Keep Rosen's Warrant Secret, New Yorker, May 24,2013, http://bit.lv/lTD3How. Unsealing of the warrant materials in that case, including an affidavit which averred that there was "probable cause to believe" that Rosen, by attempting to gather information from a source, had violated federal criminal law as "an aider and abettor and/or co-conspirator," prompted a public outcry. See Aff. of Reginald B. Reyes 4-5,39-40, Appl for Search Warrant for E-mail Account [redactedj@gmail.com. No. 1:10-mj-00291 (AK) (D.D.C. Nov. 7,2011); Marimow, Justice Department's scrutiny of Fox News reporter James Rosen in leak case draws fire. Facing intense public pressure in the wake of the Rosen case, the Department of Justice revised the internal guidelines that govern the collection of records or information from members of the news media in 2014 and 2015 to strengthen protections for journalists. See 28 C.F.R. § 50.10. At least one district court in this Circuit has recognized that the qualified First Amendment right of access applies to affidavits filed in support of search warrant applications, although the court denied immediate access without prejudice to renew the motion to unseal following the upcoming suppression hearing. United States v. Shenberg, 791 F. Supp. 292,293 (S.D. Fla. 1991). Another court, without ruling on the constitutional question, found that, "[a]t some point, possibly at the point in time of the return of the warrant or surely by the time of an indictment, the salutary effects of public access become real and positive." Matter of Search of Office Suites for World & Islam Studies Enter., 925 F. Supp. 738, 741-42 (M.D. Fla. 1996) ("[T]he federal rules, when read in conjunction with the common law, suggest that the filing of 12- Case 1:17-cr-00034-JRH-BKE Document 334 Filed 03/07/19 Page 20 of 32 the warrant with the magistrate may be the point at which access is intended." (citing Fed. R. Crim. P. 41(g))). Two district courts in this Circuit have rejected a constitutional right of access to warrant materials, but did so in the specific context—not present here—of a pre-indictment, ongoing investigation. See In re Four Search Warrants^ 945 F. Supp. 1563, 1567 (N.D. Ga. 1996) (discussing Times Mirror Co. v. United States, 873 F.2d 1210 (9th Cir.1989) and Bait. Sun Co. V. Goetz, 886 F.2d 60 (4th Cir. 1989)); In re Macon Tel. Pub. Co., 900 F. Supp. 489,491-92 (M.D. Ga. 1995) (same); of. United States v. Cohen, 18-cr-602 (WHP) (S.D.N.Y. Feb. 7,2019) (finding that the First Amendment presumption of access to warrant materials does not depend on the stage of a criminal proceeding at which the documents are requested, but holding that a strong common law presumption of access applies to warrant materials). 2. The public has a common law risht ofaccess to the Warrant Materials at issue. In addition to the constitutional right, the public also has a common law right of access to the Warrant Materials. The Eleventh Circuit has held that "the media and public presumptively have access" to "those items which may properly be considered public or judicial records." Bridgestone/Firestone, 263 F.3d at 1311; see also Hesed El v. Poff, No. 1:18-CV-079,2018 WL 4688720, at *1 (S.D. Ga. Sept. 28,2018). District courts in this Circuit have concluded that warrant materials are judicial records and that, "once search warrants are executed and retumed, absent an order sealing the documents, both the search warrant and the affidavit are part of the public domain and subject to the common law right of access." Matter ofSearch of Office Suites for World & Islam Studies Enter., 925 F. Supp. at 742; see also In re Four Search Warrants, 945 F. Supp. at 1567 (finding that a common law right of access applied to warrant materials related to an ongoing criminal investigation because the investigation "would not be compromised by 13- Case 1:17-cr-00034-JRH-BKE Document 334 Filed 03/07/19 Page 21 of 32 the release of the historical information pertaining only to a known former suspect"); In re Macon Tel Pub. Co., 900 F. Supp. at 491 (finding that a "common law right of public access exists in all instances" but, after weighing competing interests, holding that the particular pre- indictment warrant materials at issue ̂ 'should remain under seal until further order of the court ). Other federal courts of appeals have likewise uniformly found that warrant materials— particularly those from closed investigations like the Winner Matter—^are judicial records to which the common law right of access applies. See In re Search ofFair Finance, 692 F.3d 424, 433 (6th Cir. 2012); United States v. Business of Ouster Battlefield Museum and Store, 658 F.3d 1188, 1192 (9th Cir. 2011); In re Appl ofNewsday, Inc., 895 F.2d 74,79 (2d Cir. 1990) (a search warrant application is "a public document subject to a common law right of access at the post-investigation stage); Matter of Appl. & Aff. for a Search Warrant, 923 F.2d 324,330 (4th Cir. 1991) (recognizing the public's common law right of access to a search warrant affidavit before trial and finding that the public had "significant interests" in access, and "[i]n the context of the criminal justice system, these interests may be magnified"); Goetz, 886 F.2d at 64-65 (holding that the common law presumption applies to affidavits supporting search warrants "in the interval between execution of the warrants and indictment"). B. The First Amendment and Common Law Rights of Access AddIv to the Section 2703(d^ and PR/TT Materials. 1. The public has a First Amendment risht ofaccess to the Section 2703ld) and PR/TT Materials. The Section 2703(d) Materials and PR/TT Materials at issue here are analogous to warrant materials. As discussed above, warrant materials are subject to the First Amendment 14 Case 1:17-cr-00034-JRH-BKE Document 334 Filed 03/07/19 Page 22 of 32 right of access and, applying the experience and logic test, the constitutional right should likewise apply to Section 2703(d) Materials and PR/TT Materials. First, the tradition of public access to warrant materials applies to the Section 2703(d) Materials and PR/TT Materials. See In re Gunn, 855 F.2d at 573 (finding that warrant materials are judicial records and documents that "have been historically considered to be open to inspection by the public"); see also, United States v. El-Sayegh, 131 F.3d 158,161 (D.C. Cir. 1997) (stating that "[a] new procedure that substituted for an older one would presumably be evaluated by the tradition of access to the older procedure"); United States v. GonzaleSy 150 F.3d 1246, 1256 (10th Cir. 1998) (noting that the experience prong may be satisfied by establishing a history of access to information "reasonably analogous" to the information sought). Because the Section 2703(d) and PR/TT Materials are analogous to warrant materials, they should be evaluated by this same historic tradition of access. See El-Sayegh^ 131 F.3d at 161; Gonzales, 150 F.3datl256. Second, as with warrant materials, logic strongly supports a First Amendment right of access to Section 2703(d) and PR/TT Materials. See In re N. Y. Times, 585 F. Supp. 2d at 90 ("Specifically, with respect to warrants, openness plays a significant positive role in the functioning of the criminal justice system, at least in the post-investigation stage."). Indeed, because Section 2703(d) orders and orders authorizing the use of PR/TT devices function like warrants by allowing the government to obtain an individual's electronic communications records, but may be obtained on a showing lower than the probable cause standard that must be satisfied to obtain a search warrant under Federal Rule of Criminal Procedure 41, see 18 U.S.C. § 2703(d) and 18 U.S.C. § 3123(a)(1), access to such materials arguably plays an even more 15 Case 1:17-cr-00034-JRH-BKE Document 334 Filed 03/07/19 Page 23 of 32 "significant positive role in the functioning of the criminal justice system." In re N. Y. Times Co., 585 F. Supp. 2d at 90.^Access to the Section 2703(d) and PR/TT Materials at issue here will allow the public to scrutinize the arguments the government put forth in support of their applications for any Section 2703(d) orders and orders authorizing the use of PR/TT devices it sought in connection with its investigation of Winner, as well as the basis for any court order granting or denying such applications. Thus, access will allow the public to serve as a check on prosecutorial and judicial misconduct, and provide a measure of accountability to the public at large. In re Gunn, 855 F.2d at 573; In re N. Y. Times Co., 585 F. Supp. 2d at 90. To date, no federal court of appeals has squarely addressed the question of whether the First Amendment right of access applies to Section 2703(d) orders in the context of a closed investigation. The Fourth Circuit, the only federal court of appeals to address access to Section 2703(d) orders, did so in the context of an ongoing criminal investigation at the "pre-grand jury phase," and concluded that the First Amendment right of access did not apply in that context. In re United States for an Order Pursuant to 18 U.S.C. Section 2703(D)., 707 F.3d 283, 286,292 (4th Cir. 2013) {"Appelbaum'y, of In re App. of Leopold to Unseal Certain Elec. Surveillance Appls. & Orders, 300 F. Supp. 3d 61, 90-91 (D.D.C. 2018) (finding that no First Amendment presumption of access applies to warrants, applications, and orders under the SCA or PRA). ^ Orders authorizing the installation and use of PR/TT devices may be obtained ex parte by the govemment on a certification that "the information likely to be obtained by such installation and use is relevant to an ongoing criminal investigation." 18 U.S.C. § 3123(a)(1). A Section 2703(d) order may be issued "if the govemmental entity offers specific and articulable facts showing that there are reasonable grounds to believe that the contents of a wire or electronic communication, or the records or other information sought, are relevant and material to an ongoing criminal investigation." 18 U.S.C. § 2703(d). The district court's opinion in In re App. of Leopold is currently on appeal to the U.S. Court of Appeals for the District of Columbia Circuit. 16 Case 1:17-cr-00034-JRH-BKE Document 334 Filed 03/07/19 Page 24 of 32 Here, in contrast, there is no ongoing investigation; Winner pled guilty to a one-count superseding indictment and is currently serving her sentence. Accordingly, Appelbaum is distinguishable. 2. The public also has a common law risht of access to the Section 2703fd) and PR/TT Materials. The common law right of access also applies to the Section 2703(d) and PR/TT Materials at issue here. Plainly, Section 2703(d) orders and orders authorizing the use of PR/TT devices, as well as any subsequent, related court orders, are judicial records and documents. See, e.g., Appelbaum^ 707 F.3d at 290 ("[l]t is commonsensical that judicially authored or created documents are judicial records."). Keeping with this principle, courts have held that the common law right of access attaches to Section 2703(d) orders, as well as to orders authorizing the use of PR/TT devices. See id (stating that the court had "no difficulty holding that the actual § 2703(d) orders and subsequent orders issued by the court are judicial records"); In re Appl. ofthe U.S. for an Order Pursuant to 18 U.S.C. Section 2703(d)^ 830 F. Supp. 2d 114, 151—52 (E.D. Va. 2011) (applying the common law right of access balancing test to materials related to a Section 2703(d) order); In re Sealing & Non-Disclosure of PR/TT/2703(D) Ordersy 562 F. Supp. 2d 876, 891 (S.D. Tex. 2008) (writing that "opinions, orders, judgments, docket sheets, and other information related to the court's public functions" are in the "top drawer of judicial records" that are "hardly ever closed to the public"). Accordingly, the Section 2703(d) orders, orders authorizing the use of PR/TT devices, and any subsequent, related court orders issued in connection with the Winner Matter are judicial records subject to a strong presumption of access under the common law. In addition, just as applications and supporting affidavits for warrants are judicial records, applications and supporting affidavits for Section 2703(d) orders and orders authorizing the use 17 Case 1:17-cr-00034-JRH-BKE Document 334 Filed 03/07/19 Page 25 of 32 of PR/TT devices are likewise judicial records because, among other things, they are considered by the court in determining whether to issue the order being sought by the government. See Bridgestone/Firestone, 263 F.3d at 1312 (holding that documents that "require Judicial resolution of the merits [are] subject to the common-law right"). A court may issue a Section 2703(d) order "only if the govemmental entity offers specific and articulable facts showing that there are reasonable grounds to believe" the communications records that will be obtained "are relevant and material to an ongoing criminal investigation." 18 U.S.C. § 2703(d). Thus, the applications and supporting affidavits form the basis for the court's determination of whether the govemment has met the statutory standard for issuance of a Section 2703(d) order, which is "essentially a reasonable suspicion standard." Appelbaum, 707 F.3d at 287. Likewise, before a court enters an order authorizing the installation and use of a pen register or trap and trace device, it must conclude that "the attomey for the Govemment has certified to the court that the information likely to be obtained by such installation and use is relevant to an ongoing criminal investigation." 18 U.S.C. § 3123(a)(1). The govemment's application thus plays a decisive role in the court's determination as to whether use of a PR/TT device should be authorized or a Section 2703(d) order issued. Finally, motions related to Section 2703(d) orders and PR/TT orders other than applications also play a key role in the adjudicatory process and therefore are judicial records. Such derivative motions are filed with the objective of obtaining judicial action or relief, and the court relies upon such filings in granting or denying the relief sought. Consistent with this reasoning, the Fourth Circuit has held that derivative Section 2703(d) motions are judicial records because they play a role in the adjudicative process; namely, "they were filed with the 18 Case 1:17-cr-00034-JRH-BKE Document 334 Filed 03/07/19 Page 26 of 32 objective of obtaining judicial action or relief pertaining to § 2703(d) ordiQxs" Appelbaum, 707 F.3d at 291. For these reasons, any derivative Section 2703(d) and PR/TT motions are judicial records to which the common law right of access applies. III. The Press and the Public Have Both a Constitutional and Common Law Right of Access to Court Docket Sheets Reflecting the Warrant Materials, PR/TT Materials, and Section 2703(d) Materials. Docket sheets are judicial records to which the common law right of access applies. See In re Gunn, 855 F.2d at 575 ("The case dockets maintained by the clerk of the district court are public records." (citation omitted)). In addition, several federal courts of appeals, including the Eleventh Circuit, have recognized that the constitutional right of access also applies to court docket sheets. See Valentin 987 F.2d at 715 (holding unconstitutional the maintenance of a "dual-docketing system" whereby certain dockets were sealed and "completely hid[den] from public view"); see also Hartford Courant Co. v. Pellegrino, 380 F.3d 83, 93-94 (2d Cir. 2004) (holding that docket sheets in civil and criminal proceedings "enjoy a presumption of openness and that the public and the media possess a qualified First Amendment right to inspect them"); Doe V. Pub. Citizen, 749 F.3d 246,268 (4th Cir. 2014) (holding that there is a First Amendment right of access to docket sheets in civil proceedings); Tri-Cty. Wholesale Distributors, Inc. v. Wine Grp., Inc., 565 F. App'x 477,490 (6th Cir. 2012) ("The First Amendment access right extends to court dockets, records, pleadings, and exhibits."). 19- Case 1:17-cr-00034-JRH-BKE Document 334 Filed 03/07/19 Page 27 of 32 IV. The Government Cannot Meet Its Burden to Overcome the Presumption of Access to the Warrant Materials, PR/XT Materials, and Section 2703(d) Materials. A. The Government Cannot Demonstrate a Compelling Interest That Justifies the Continued Sealing of the Warrant. Section IVOStd'l. and PR/TT Materials. A document to which the First Amendment right of access applies may remain under seal only if "specific, on the record findings are made demonstrating that 'closure is essential to preserve higher values and is narrowly tailored to serve that interest.'" Press-Enterprise II, 478 U.S. at 13-14 (quoting Press-Enterprise 1,464 U.S. at 510); see also Valenti, 987 F.2d at 713. Newman, 696 F.2d at 802 ("A presumption of access must be indulged to the fiillest extent not incompatible with the reasons for closure." (citing Richmond Newspapers, 448 U.S. at 580 n. 17)). Because the government's investigation and prosecution of Winner has concluded, there can be no compelling interest in the continued sealing of any Warrant, Section 2703(d), and PR/TT Materials related to the Winner Matter. Moreover, even assuming arguendo that the government could identify some compelling interest that justified sealing some portion of those Warrant, Section 2703(d), or PR/TT Materials, redaction—^not wholesale sealing—^would be required. See Press-Enterprise 1,464 U.S. at 510 (closure of records must be narrowly tailored to serve the compelling government interest); Newman, 696 F.2d at 802 ("If closure is warranted, the restriction on access must be narrowly drawn with only the part of the proceeding as is necessary closed." (citing Globe Newspaper Co., 457 U.S. at 608)). 20 Case 1:17-cr-00034-JRH-BKE Document 334 Filed 03/07/19 Page 28 of 32 B. The Government Cannot Overcome the Strong Common Law Presumption in Favor of Disclosure of the Warrant. Section 2703(d). and PR/XT Materials. Where, as here, the common law presumption of access attaches, judicial records may be sealed only if and to the extent that the presumption is outweighed by competing interests. See Bridgestone/Firestone, Inc., 263 F.3d at 1311 & n. 7. Here, the weight of the presumption of access is especially strong as the judicial records at issue play an important role in determining the substantive rights of individuals and provide great value to those monitoring federal courts as well as actions of the executive branch. See United States v. AmodeOy 71 F.3d 1044,1049 (2d Cir. 1995); Smithy 956 F.2d at 650. Against this strong presumption of access, there are minimal—if any—interests in maintaining the secrecy of the judicial records at issue, and they should be unsealed. As explained above, there is no ongoing investigation; the Winner Matter has concluded, and Winner is currently serving her sentence. Moreover, none of the court records at issue are being sought for an improper purpose. The Reporters Committee seeks access to these materials for the benefit of the press and public at large. In addition, much of the information relating to Winner's prosecution—^and, as noted above, materials related to at least one search warrant obtained by the government—are already in the public forum. The public loiows that Winner was charged for allegedly disclosing national defense information to a news media outlet, and that she pled guilty. Accordingly, even though the Warrant, Section 2703(d), and PR/TT Materials are sealed, much of their underlying subject matter is public, a factor weighing in favor of disclosure. -21 Case 1:17-cr-00034-JRH-BKE Document 334 Filed 03/07/19 Page 29 of 32 In sum, because no competing factors outweigh the strong presumption of public access to the Warrant, Section 2703(d), and PR/TT Materials at issue here, they should be unsealed. CONCLUSION For the foregoing reasons, the Reporters Committee's respectfully requests that the Court grant its motion to intervene in the matter of United States v. Reality Winner, Case No. 1.17-cr- 34 (S.D. Ga. 2017) for the limited purpose of seeking access to certain sealed court records concerning the completed "leak" investigation and related criminal prosecution of the Winner Matter, and enter an order unsealing the Warrant, Section 2703(d), and PR/TT Materials related to the Winner Matter. 22- Case 1:17-cr-00034-JRH-BKE Document 334 Filed 03/07/19 Page 30 of 32 Dated: March 4,2019 Respectfully submitted. /DavidE. Hudson David E. Hudson Ga. Bar No. 374450 Hull Barrett SunTrust Banlc Building, 801 Broad Street Seventh Floor Augusta, GA 30901 Tel: (706) 722-4481 Peter C. Canfield Ga. Bar No. 107748 Meredith C. Kincaid Ga. Bar No. 148549 JONES Day 1420 Peachtree Street, NE, Suite 800 Atlanta, GA 30309 Tel: (404) 521-3939 Counsel of Record for Applicant the Reporters Committee for Freedom of the Press Bruce D. Brown* Katie Townsend* Linda Moon* The Reporters Committee For Freedom Of The Press 1156 15th St. NW, Suite 1020 Washington, DC 20005 Tel: (202) 795-9300 *0/"Counsel for Applicant the Reporters Committee for Freedom of the Press 23 Case 1:17-cr-00034-JRH-BKE Document 334 Filed 03/07/19 Page 31 of 32 T- ^ CERTIFICATE OF SERVICE I hereby certify that on March 4,2019,1 electronically filed the foregoing with the Clerk of the Court using the ECF system, which sent notification of such filing to counsel of record for all parties. /s/ David E. Hudson David E. Hudson -24 Case 1:17-cr-00034-JRH-BKE Document 334 Filed 03/07/19 Page 32 of 32