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A Private Civil Litigant's Right of Access to Wiretap Evidence Disclosed at an unrelated Suppression Hearing in the Third Circuit

Winner of the Justice Ruth Dader Ginsburg "Pursuit of Justice" Legal Writing Competition

by Nicholas G. Kondraschow

Fall 2006, Vol. 69, No. 3

I. Introduction


Imagine that several high ranking county executives are charged with racketeering, mail fraud and wire fraud in district court in the Third Circuit. These charges stem from allegations that the county officials abused their public office by ordering county employees, including county police officers, to campaign for political candidates and perform personal chores, such as painting the house of one of the officials. During the investigation of the county officials, a confidential informant cooperating with the FBI secretly recorded his conversations with the county officials in accordance with the Federal Wiretap Act. Before the trial on these charges, the government indicates its intent to introduce into evidence portions of the recorded conversations. Shortly thereafter, the county officials request an order, over the government's objection, that any documents filed with the court containing excerpts of the recorded conversations be sealed, arguing that the recordings are irrelevant and prejudicial and that their publication will interfere with their right to a fair trial. The court grants the defendants' request. The court subsequently orders the government to specify which excerpts it intends to use at trial. In response, the government submits under seal transcripts of the recordings it intends to play at trial. As background for the admissibility of certain excerpts, the government alleges in its submission that the defendants ordered county employees to campaign for a candidate to the county council. The candidate’s opponent was a lawyer who had several land developers as clients. The government offers to introduce, as evidence of the defendants’ criminal intent and motive, statements by the defendants expressing the intent to ruin the candidate's opponent’s career by having the county's land use department delay future consideration and approval of the opponent's clients' matters pending before the department. Upon learning this information, one of those clients sues the county alleging that the county officials violated his equal protection and due process rights. In his civil suit, the client seeks access to portions of the recorded conversations that support his allegations. The defendants oppose the client's request; the government does not.

The purpose of this comment is to argue that a private civil litigant in the Third Circuit may get access to wiretap evidence obtained by the government and disclosed at an unrelated criminal suppression hearing for use in a civil case to which the government is not a party. Part II of this comment argues that the Third Circuit would find a qualified First Amendment public right of access to wiretap evidence disclosed at a suppression hearing. Part III of this comment argues that Title III does not automatically bar a First Amendment public right of access. Finally, Part IV of this comment concludes with a prediction of how the Third Circuit would rule in the subsequent balancing of interests to determine whether the private civil litigant described above should actually be granted access.

II. The Third Circuit Is Likely To Find That A Qualified First Amendment Public Right of Access Attaches To Wiretap Evidence Disclosed At A Suppression Hearing


The United States Supreme Court, in a progression of cases, has developed a two-part analysis to determine whether the public should actually be granted access to a particular criminal proceeding. The first part of the analysis asks whether a qualified First Amendment public right of access attaches to a particular criminal proceeding. A right of access attaches to a particular proceeding if, under an "experience and logic" test, the public is found to have sufficient interests in attending the proceeding to support a public right of access. The First Amendment public right of access is not absolute, however. The second part of the analysis asks whether access should actually be granted. If a First Amendment public right of access attaches to a particular criminal proceeding, it may be overcome by "an overriding interest based on findings that closure is essential to preserve higher values and is narrowly tailored to serve that interest." Therefore, the two-part analysis is essentially a balancing test, weighing the public’s interests, implicated in the determination of whether a First Amendment public right of access attaches in the first instance, against countervailing interests favoring closure. Under the first part of the analysis, the “experience and logic” test, the Supreme Court has found a First Amendment public right of access to suppression hearings. The Third Circuit has extended the Supreme Court’s public right of access jurisprudence to court documents. Thus, the Third Circuit is likely to find a qualified First Amendment public right of access to wiretap evidence disclosed at a suppression hearing. This is especially the case where the civil litigant’s interest in access is enhanced because the conduct of public officials is involved and the wiretap evidence contains evidence probative and relevant to his civil case.
The Supreme Court first recognized that a public right of access to criminal proceedings is protected implicitly by the First Amendment in Richmond Newspapers. Although the First Amendment does not expressly give the public the right to attend criminal trials, at the time of its adoption criminal trials had long been presumptively open to the public. This presumption of openness was “no quirk of history,” however. Rather, the ability of the public to attend criminal trials served many important functions. It ensured that the proceedings were conducted fairly. It discouraged perjury, misconduct, and decisions based on bias. It promoted the public perception of fairness important to the effectiveness and legitimacy of a criminal justice system. It discouraged vigilantism by providing an “outlet for community concern, hostility and emotion.” And it had an “educative effect” that increased respect and confidence for the law. In addition, the Court found that the implicit guarantee of the public to attend criminal trials was necessary to give effect to the express protections of the freedom of speech and of the press, the right of the people to peaceably assemble, and the right of the people to petition the government for grievances. This was so because the “core purposes” of those protections – “assuring freedom of communication on matters relating to the functioning of government” – were nowhere implicated as seriously then in the manner in which criminal trials are conducted. Moreover, the Supreme Court has recognized a First Amendment right to “receive information and ideas.” In the context of trials, this means that the First Amendment “prohibit[s] government from summarily closing courtroom doors which had long been open to the public at the time that Amendment was adopted.” Finally, the First Amendment protects the right of the public to peaceably assemble in public places and the public has generally had a right to be present in courtrooms.
The First Amendment right of public access extends beyond just the criminal trial itself. Early on in it’s public right of access jurisprudence, the Supreme Court found that the First Amendment protects a public right of access to voir dire proceedings in criminal trials because they are “an integral part of the trial” and have been presumptively open to the public. In addition, openness in the selection of jurors “enhances both the basic fairness of the criminal trial and the appearance of fairness so essential to public confidence in the system.” The Court subsequently found a presumption of openness to a suppression hearing since it “often resembles a bench trial.” The Court has since emphasized that the existence of a First Amendment right of access does not depend upon whether a proceeding is sufficiently trial-like. Rather, whether a First Amendment public right of access attaches to a proceeding is determined by an “experience and logic” test. The “experience” prong of the test asks “whether the place and process have historically been open to the press and general public.” The “logic” inquiry involves “whether public access plays a significant positive role in the functioning of the particular process in question.” When a particular proceeding satisfies this test, a qualified First Amendment right of public access attaches to the proceeding. After elucidating the experience and logic test, the Court held that a First Amendment public right of access attached to preliminary hearings because they had a historical tradition of being open to the public. The preliminary hearing satisfied the experience prong of the test because it had a historical tradition of being open to the public. In addition, the ability of the public to attend the preliminary hearing satisfied the interests identified in Richmond Newspapers and Press-Enterprise I and, thus, public access was “essential to the proper functioning of the criminal justice system.”
Under the experience and logic test, the Third Circuit has found a First Amendment public right of access to “pretrial suppression, due process, and entrapment hearings” and post-trial proceedings to investigate jury misconduct. Interestingly, in its application of the test the Third Circuit has dismissed the experience prong as irrelevant where the proceeding in question did not exist until modern times. The Third Circuit has justified doing so because the “Supreme Court has accepted the view that the first amendment is to be interpreted in light of current values and conditions.” For instance, in its analysis of pretrial hearings the Third Circuit proceeded to the logic prong of the test after finding no counterpart at common law to modern pretrial criminal hearings. The court concluded that a First Amendment public right of access attached to pretrial criminal hearings because they were often (1) “the most critical stage of a criminal proceeding;” (2) the only adversarial proceeding in a criminal case; and (3) the only point in a criminal case where the conduct of law enforcement officers is at issue. Similarly, the Third Circuit found the experience prong of the test irrelevant in the context of post-trial proceedings to investigate jury misconduct since there was no history of either openness or closure for such proceedings. Under the logic inquiry of the test, the court found that “[s]uch proceedings implicate all six of the societal interests recognized in Richmond Newspapers.” Accordingly, the court found that a qualified First Amendment public right of access attached to post-trial hearings to investigate jury misconduct.
It is thus clear that a First Amendment public right of access attaches to suppression hearings. Less clear is whether a First Amendment public right of access also attaches to the documents submitted by litigants in suppression hearings. Although the Supreme Court has not extended the First Amendment public right of access to court documents in addition to criminal proceedings, it has recognized a common law right of access to “inspect and copy judicial records and documents.” The common law right of access is based on many of the same interests as the First Amendment right. For instance, “‘the citizen’s desire to keep a watchful eye on the workings of public agencies’ and publication of ‘information concerning the operation of government’ are identical to the interests identified in [Richmond Newspapers].”
The common law right automatically attaches to all judicial documents but is not absolute. It is not absolute because “[e]very court has supervisory power over its own records and files” and access to records can be denied where court files might become a “vehicle for improper purposes.” The Supreme Court has given the following examples of improper purposes:

“. . . to gratify private spite or promote public scandal through the publication of painful and sometimes disgusting details of a divorce case. Similarly, courts have refused to permit their files to serve as reservoirs of libelous statements for press consumption, or as sources of business information that might harm a litigant’s competitive standing.”

Under the common law right, “the decision as to access is one best left to the sound discretion of the trial court, a discretion to be exercised in light of the relevant facts and circumstances of the particular case.”
Although the Supreme Court has not extended the First Amendment public right of access to court documents, the Third Circuit has. In Smith, the Third Circuit saw no reason why the Supreme Court’s First Amendment analysis “does not apply as well to judicial documents” and, thus, found a First Amendment public right of public access to bills of particulars. The Third Circuit found that bills of particulars were more akin to indictments than discovery and that there was a historic tradition of public access to the charging documents in a criminal case. In addition, the court noted that “[k]nowledge of the charge or charges is essential to an understanding of the trial, essential to an evaluation of the performance of counsel and the court, and, most importantly, essential to an appraisal of the fairness of the criminal process to the accused.” Having found the experience and logic test satisfied, the court held that a qualified First Amendment right of access attached to bills of particulars.
In any event, under either approach the Third Circuit is likely to reach the same result. This is so because the Third Circuit has essentially merged its analysis under the common law right of access to court documents with its First Amendment analysis. For instance, in Criden I the Third Circuit found that the same policy considerations identified in Richmond Newspapers as supporting a public right of access under the First Amendment supported a common law right of access to video and audiotapes admitted into evidence at trial. Thus, the court found that “the analyses in Richmond Newspapers of the public’s right to an open trial provide strong support for reliance on the common law right of access to trial materials in this case.” The court noted that the common law right of access may be overcome by “sufficient justifications” and that it was within the district court’s discretion to “balance the strong public interest favoring access against legitimate privacy concerns of third parties.” The court relied on the same reasoning in Martin to find a common law right of access to audiotapes played in open court and transcripts but not admitted into evidence. Similarly, in Smith, the Third Circuit treated the analyses under the common law and First Amendment as coextensive. After conducting an “experience and logic” analysis the court concluded that “[b]ecause of our historic experience and the societal interest served by public access to indictments and informations, we hold that such access is protected by the First Amendment and the common law right of access to the judicial process.”
Thus, the Third Circuit is likely to determine whether there is a public right of access to wiretap evidence disclosed at a suppression hearing under an experience and logic analysis. In its analysis, the court is likely to dismiss the experience prong as irrelevant since electronic surveillance is a modern invention and, therefore, there is no history of either openness or closure for wiretap evidence. Turning to the logic prong of the analysis, the court is likely to find that public access to wiretap evidence disclosed at a suppression hearing implicates all six of the societal interests recognized in Richmond Newspapers, i.e.:

“[P]romotion of informed discussion of governmental affairs by providing the public with the more complete understanding of the judicial system; promotion of the public perception of fairness which can be achieved only by permitting full public view of the proceedings; providing a significant community therapeutic value as an outlet for community concern, hostility and emotion; serving as a check on corrupt practices by exposing the judicial process to public scrutiny; enhancement of the performance of all involved; and discouragement of perjury.”

Moreover, the court is likely to find that these interests are enhanced because the conduct of public officials is involved in that (1) the materials involve the prosecution of public officials for corruption related to their public office and (2) wiretapping involves government monitoring. With respect to the prosecution of public officials, the Third Circuit has found that “where the prosecution is of a powerful politician for abuse of his public office, the already strong interest in observing the proceedings is enhanced.” In particular, the appearance of fairness and justice, one of the six societal interests identified in Richmond Newspapers, is especially important in the prosecution of public officials, prosecutors, police and even the judiciary. Furthermore, the need for the public to attend the prosecution of public figures is “emphasized in the case of suppression proceedings, since the result may be the exclusion of trustworthy and often damning evidence against the accused for technical reasons not always readily comprehensible to laymen.” The Eastern District of Pennsylvania has also found that the six societal interests identified in Richmond Newspapers overwhelmingly supports public access, particularly in a case involving public corruption. That court stated:

“[C]ourts must make public corruption proceedings open to public scrutiny. Official corruption is a malignant cancer on the body politic, for which prosecution and publicity are strong cures. Prosecution of public corruption cases must be highly transparent so that the public will be aware of the governmental transactions at issue, which will allow members of the public to express opinions and exercise their right to petition and vote based on conclusions reached from the facts in the public record, regardless of the guilt or innocence of a particular defendant.”

Conversely, where the prosecution of public officials is involved, the defendant’s argument that prejudicial publicity will interfere with his right to receive a fair trial receives less weight.
In addition, the civil litigant’s interest in access is enhanced when the materials sought involve government monitoring regardless of whether the prosecution is of a government official. Wiretapping itself involves the conduct of law enforcement in sensitive areas and thus the public’s interest is enhanced in order to confirm that government investigations are conducted lawfully. Finally, an argument may also be made that the wiretap materials sought by the civil litigant contain evidence probative and relevant to his civil case. In the context of whether the privilege against adverse spousal testimony promotes sufficiently important interests to outweigh the need for probative evidence in the administration of criminal justice, the Supreme Court stated:

“Testimonial exclusionary rules and privileges contravene the fundamental principle that ‘the public . . . has a right to every man's evidence.’ As such, they must be strictly construed and accepted ‘only to the very limited extent that permitting a refusal to testify or excluding relevant evidence has a public good transcending the normally predominant principle of utilizing all rational means for ascertaining truth.’”

Accordingly, the Third Circuit is likely to find that public access to wiretap evidence disclosed at a suppression hearing would play a significant positive role in the functioning of the suppression hearing and that the private civil litigant’s interest in evidence involving public officials and that was relevant to his civil case support a right of access to such materials.

III. The Third Circuit Is Likely To Find That Title III Protects the Privacy Interests Of The Defendant But Does Not Automatically Preclude A First Amendment Public Right of Access


The analysis does not end after the finding that a First Amendment public right of access attaches to a particular criminal proceeding or to certain court documents. The second part of the analysis asks whether the public should actually be granted access. The public’s interest in access is implicated, in particular, by the logic prong of the experience and logic test which asks whether open proceedings are mandated by the interests identified in Richmond Newspapers. The second part of the analysis basically weighs these interests against the countervailing interests in favor of closure. A First Amendment public right of access may be overcome by “an overriding interest based on findings that closure is essential to preserve higher values and is narrowly tailored to serve that interest.” In addition, specific, on the record findings must be made demonstrating that closure is necessary to protect effectively against the perceived harm and that alternatives would not adequately preserve those rights. It is not enough that alternatives present difficulties for the courts, so long as they are within “the realm of the manageable.” If any of these requirements are lacking – for instance, if alternatives are not considered – the proceeding or documents must be made open or available to the public. Here, the Third Circuit would likely find that the defendants’ right to a fair trial and the privacy interests of the defendants or third parties in intercepted communications does not outweigh the public’s interest in access.
The Supreme Court has recognized that a defendant’s Sixth Amendment right to a fair trial, the privacy interests of the defendant and third parties, and “the government’s interest in inhibiting disclosure of sensitive information” may, in some circumstances, constitute compelling interests in favor of closure. The Supreme Court has, however, found several alternatives short of closure that sufficiently protect these interests. For instance, a defendant’s right to a fair trial is often implicated by the specter of prejudicial pretrial publicity. Concerns regarding prejudicial pretrial publicity may be resolved by excluding witnesses from the courtroom, sequestering witnesses or jurors during trial, and by the voir dire questioning of jurors. When the privacy interests of jurors are implicated, the Court has noted that a valid alternative to closure is to allow jurors an opportunity to request to answer sensitive questions in camera and that a transcript of the closed proceeding made available if the judge determines that disclosure can be accomplished while safeguarding the juror's valid privacy interests, including perhaps by sealing portions of the transcript or redacting the name of the juror.

The Third Circuit has recognized the privacy interests of third parties on several occasions. For instance, in Smith, the Third Circuit recognized the privacy and “reputational” interests of unindicted co-conspirators as a compelling interest in favor of closure. In addition, the court found the order sealing portions of a bill of particulars was narrowly tailored because the order was limited to the names of the co-conspirators and did not prevent dissemination of the names if obtained from any other source. Moreover, the judge advised that he would lift the order in the event any of the co-conspirators were indicted. Similarly, in Criden I, the court remanded the case so that the district court could balance the public interest in access against the “legitimate privacy concerns of third parties” to determine whether to grant access to tapes the possibly contained “scurrilous and libelous” statements about third parties.
The Third Circuit has been considerably less generous where the interests of defendants or the government are concerned. For instance, where the potential for prejudicial pretrial publicity exists, the court has found that “publicity [is] was one of the unavoidable impacts of the criminal justice system upon persons whose activities subject them to criminal charges.” The court has emphasized numerous times that several alternatives exist to preserve both the government’s and defendant’s right to a fair trial:

“Although sequestration is available only at trial, other methods of protecting the defendant's rights must be considered before closing a pretrial criminal hearing: for example, holding the hearing immediately prior to sequestering the jury, or using voir dire, continuance, severance, change of venue, additional peremptory challenges, and admonitory instructions to the jury to lessen the possibility of prejudice.”

The Third Circuit has found the use of voir dire in particular an effective means of protecting the defendant’s right to a fair trial.
Where wiretap evidence is concerned the parties’ interests in privacy whose communications were intercepted receive additional protection by Title III. Title III makes it unlawful for any person to intentionally intercept “any wire, oral, or electronic communication.” Title III provides an exception for interceptions approved by judges of competent jurisdiction upon application by law enforcement personnel. Any recordings made pursuant to an authorized interception must be “sealed under [the judge’s] directions.” Once a recording has been sealed, Title III closely circumscribes how and when its contents may be used or disclosed. As an initial matter, §2515 provides a broad exclusionary rule by prohibiting the contents of an interception from being received in any proceeding if the disclosure would violate any of the provisions of Title III. Section 2517 mostly governs non-public disclosures and use.
Section 2517(3) is the only provision providing for public disclosure. As such, this provision plays a large role in the analysis of when public access to Title III materials may be permitted. Section 2517(3) states:

Any person who has, by any means authorized by this chapter, any information concerning a wire, oral, or electronic communication, or evidence derived therefrom intercepted in accordance with the provisions of this chapter may disclose the contents of that communication or such derivative evidence while giving testimony under oath or affirmation in any proceeding held under the authority of the United States or of any State or political subdivision thereof.

Because the terms of Title III may be considered silent on the issue of public access to Title III materials or can, under certain circumstances, be considered ambiguous, courts that have examined the question typically turn to the legislative history behind Title III to determine its meaning. Congress stated its purposes in enacting Title III as “(1) protecting the privacy of wire and oral communications, and (2) delineating on a uniform basis the circumstances and conditions under which the interception of wire and oral communications may be authorized.”
Of course, legislative history itself can be ambiguous and, at times, even contradictory. Some guidance on the subject of the legislative history of Title III was provided by the Supreme Court in Gelbard v. United States. In Gelbard, the Supreme Court found that “although Title III authorizes invasions of individual privacy under certain circumstances, the protection of privacy was an overriding congressional concern.” The Court found that the legislative history of Title III indicates that Congress was concerned, in the first instance, with safeguarding the privacy of individuals by prohibiting the interception of private communications. Congress wanted to create an exception, however, for law enforcement and crime prevention. Thus, Title III allows incursions into individual privacy when the government can demonstrate an interest in law enforcement or crime prevention that would be furthered by the interception of private communications. Consistent with Congress’ interest in protecting privacy, interceptions are permitted only by “duly authorized law enforcement officers engaged in the investigation or prevention of specified types of serious crimes, and only after authorization of a court order obtained after a showing and finding of probable cause.” The legislative history also indicates that Congress’ interest in safeguarding the privacy of individuals didn’t end once an interception was authorized or, in other words, “that the invasion of privacy is over and done with,” once a wiretap is approved. Rather, Congress sought to protect individual privacy by also safeguarding the contents of interceptions. In furtherance of these interests, Title III provides for very limited use and disclosure of the contents of interceptions.
The circuit courts that have addressed the specific issue of whether there is a public right of access to wiretap evidence have generally taken two very different approaches. The Second Circuit has found that Title III does not automatically preclude public access to wiretap evidence. Instead, the privacy interests protected by Title III must be weighed against the constitutional right of access to such materials. The Third Circuit has interpreted Title III similarly, but questions exist as to the continued validity of the court’s ruling. In contrast, the Seventh and Eighth Circuits have interpreted Title III as a broad prohibition of pubic access to wiretap evidence notwithstanding First Amendment public right of access jurisprudence.
The Third Circuit, in Cianfrani, found that Title III does not prohibit public access to intercepted communications disclosed at a suppression hearing after a determination that they were intercepted lawfully. The court found that the Sixth Amendment protected a public right of access but that the right of access could be overcome by a “sufficiently weighty” interest. The court rejected the argument that Title III automatically precluded access to wiretap materials. Instead, it found that Title III only prohibited disclosure of intercepted communications that may have been intercepted in violation of the law. Thus, disclosure or, more accurately public disclosure, was prohibited prior to a determination that the communications were lawfully intercepted. Accordingly, the public can be excluded from a suppression hearing where communications are discussed for the very reason of determining whether they were lawfully intercepted. However, once those communications are disclosed at a suppression hearing, as authorized by §2517(3), and it is determined that the communications were intercepted lawfully, the public has a right of access to those communications. In addition, the court noted that he public’s right of access to these disclosed, lawful communications exists regardless of whether the communications are actually used at trial or found admissible at the trial for the purpose for which they are offered. The court acknowledged that Title III’s interest in protecting the privacy of communications may be “sufficiently weighty” to justify prohibiting public access to wiretap evidence lawfully obtained and disclosed at a suppression hearing. However, because the defendant pled guilty and the contents of most of the intercepted communications at issue were placed on the public record during the plea hearing, the Court did not reach the question of whether, under different circumstances, the release of the sealed record from a suppression hearing would interfere with the defendant’s right to a fair trial.
The Second Circuit has likewise held that Title III does not automatically prohibit public access to Title III materials. In particular, with respect to a motion to suppress evidence obtained by the government, “[t]here is a legitimate public interest in knowing the grounds on which government conduct in obtaining evidence is challenged.” The court has noted that, where a qualified First Amendment public right of access to pretrial motions containing Title III materials exists, “it is not enough simply to cite Title III.” This is so because, “[o]bviously, a statute cannot override a constitutional right.” Thus, while the privacy interests protected by Title III are extremely important and the “chilling effect” created by the public’s right of access to a suppression hearing gives “added weight” to a defendant’s fair trial and privacy interests, those interests must be weighed against the constitutional right of access.
The Seventh and Eighth Circuits, on the other hand, have interpreted Title III as creating broad prohibitions against public access to wiretap evidence. For instance, the Seventh Circuit, in Dorfman, upheld the district court’s sealing of exhibits containing Title III materials at a suppression hearing even after those materials were found to have been obtained lawfully. The court interpreted Title III in light of Congress’ concern with protecting privacy. First, the court found that Title III, by expressly authorizing disclosure only under very limited circumstances, implies that “what is not permitted is forbidden.” Second, the court found that while most authorized disclosures would become public, Title III did not by itself create a right of public access. Thus, the court found that, while Title III authorized disclosure “while giving testimony,” there was no separate privilege to publicize testimony that was given in camera. In addition, once the trial judge properly sealed the Title III materials before a determination that they were lawfully obtained, “he was not authorized by any provision that we are able to find in Title III to release them to the public.” Rather, the court found that the only lawful way sealed Title III materials could be made public over the defendant’s objection was by being admitted into evidence in the criminal trial or in some other public proceeding. The court then turned to a consideration of whether a right of access to Title III materials was to be found in the First Amendment. The Court noted that the right of privacy protected by Title III, founded on the Fourth Amendment, is no more absolute than the First Amendment right of access: “[i]t yields among other things to imperative needs of law enforcement . . . to the extent [intercepted communications are] deemed admissible and are actually admitted, it will ‘lawfully diminish the appellants’ privacy.” The court noted that the wiretap evidence at issue may never be presented at trial. Thus, “[n]o law enforcement interest requires that this evidence be made public. There is public curiosity about it, but curiosity is just the opposing force to privacy; one of them has to yield; both have constitutional dignity.” The court then found that these interests, “public curiosity” and a defendant’s privacy interests, had already been balanced by Congress in Title III.
The Eighth Circuit, in its original panel opinion in In re Motion to Unseal Electronic Surveillance Evidence (“Motion to Unseal I”), approached Title III more like the Second and Third Circuits. In Motion to Unseal I, the Eighth Circuit held that, under limited circumstances, wiretap evidence not previously made public may be made available to private civil litigants. The court first noted that, implicit in the grant of power given to the judge by §2517(5), which allows a judge to permit the government to disclose wiretap evidence related to offenses other than those specified in the wiretap authorization, is the judge’s authority to grant access to intercepted communications. Noting Congress’ concern with protecting privacy, the court refused to construe §2517 as “general discovery mechanism.” Nevertheless, the privacy interests protected by Title III are not absolute. And, in discovery, courts are often asked to weigh confidentiality and privacy interests against the compelling need for discovery. Thus, while the privacy interests protected by Title III are significant, they must be weighed against the need for discovery.
On rehearing en banc, however, the Eighth Circuit found that the authority for release of Title III materials must be found in §2517 and nothing in that section permitted ?pretrial disclosure to private civil litigants. The court noted that appellant’s argument that §2517(3) provides for the disclosure he seeks “has a surface plausibility, but only if one concentrates on the language alone and ignores the rest of Title III and the legislative struggle leading to its enactment.” In light of Congress’ concern for protecting privacy and that Title III provided for very limited disclosure, since Title III did not specifically authorize pretrial disclosure to private civil litigants, it prohibited it. In addition, the court found that a private civil litigant’s need for discovery is irrelevant absent statutory authority.
Based on the foregoing, the Third Circuit is likely to find that Title III does not automatically preclude public access to wiretap evidence, but that the privacy interests protected by Title III must be weighed against the constitutional right of access to such materials. Although the Third Circuit’s reliance in Cianfrani on a public right of access protected by the Sixth Amendment was overruled in Gannett Co., its interpretation of Title III was not flawed. And, in any event, the Third Circuit’s interpretation of Title III in Cianfrani and the Second Circuit’s interpretation of Title III arguably constitute the better reading of the Act. Afterall, §2517(3) expressly allows the disclosure of lawfully obtained wiretap evidence “while giving testimony under oath or affirmation in any proceeding.” Title III only prohibits disclosure of intercepted communications that were obtained in violation of Title III. Once wiretap evidence has been disclosed in motions filed in suppression hearings, the Second and Third Circuits have found that a qualified First Amendment public right of access attaches to the Title III materials. But perhaps disclosure in this manner cannot be considered “while giving testimony.” Looking to legislative history to resolve any ambiguities, the Second and Third Circuit have acknowledged Congress’ overriding concern in enacting Title III with protecting privacy. These courts have acknowledged that Title III’s statutory protection of privacy interests cannot trump a constitutional right of access. In accordance with the Supreme Court’s First Amendment right of access, however, the privacy interests protected by Title III are to be weighed against the public’s right of access. In contrast, the Seventh and Eighth Circuits have found that Title III creates a broad prohibition against public access to wiretap evidence. These courts justify their conclusion because of Congress’ overriding concern with protecting privacy and the fact that no provision of Title III creates a right of public access. According to these courts, what is not permitted by Title III is forbidden. These courts err by looking to Title III for the authority to permit public access. On the contrary, the authority for public access rests in the First Amendment. Even if Title III is read to prohibit public access prior to a determination that the communications were lawfully intercepted and prior to their authorized disclosure, once wiretap evidence has been lawfully disclosed at a suppression hearing, nothing in Title III prohibits public access to such materials whereas a First Amendment public right of access permits access.
Although the Seventh Circuit acknowledged that the authority for access to wiretap evidence may be found in the First Amendment, it found that Congress had already weighed the right of privacy against the First Amendment right of access when it enacted Title III. But questions remain whether Congress did in fact do this and, if so, whether they could in light of the Supreme Court’s First Amendment public right of access jurisprudence. And though the court said that the right of privacy protected by Title III, founded on the Fourth Amendment, was no more absolute than the First Amendment right of access, they found that the right of access dissolved in the face of Title III.

The Seventh and Eighth Circuit’s broad interpretation of Title III is in turn supported by their overly narrow reading of the provisions of Title III. First and foremost, the finding of these courts that what is not permitted by Title III is forbidden, ignores general policy rules of interpretation. As noted in the vigorous dissent in Motion to Unseal, this interpretation is contrary to the “general evidentiary principle ‘that evidence is available unless specifically protected by a rule of exclusion,’ and instead states that ‘wiretap material is not available unless its use is explicitly and specifically authorized by section 2517.’” In addition, the Supreme Court has been “especially reluctant to recognize [an evidentiary] privilege in an area where it appears that Congress has considered the relevant competing concerns but has not provided the privilege itself.” Second, according to the Seventh Circuit, while disclosure is authorized “while giving testimony,” there is no separate right of access to testimony given in camera. This conclusion makes two missteps. By characterizing it as a “separate right of access,” the court ignores the fact that once lawfully obtained evidence has been disclosed in accordance with §2517, nothing in that section prohibits a public right of access from attaching to the materials. Further, by finding that there is no right of public access to testimony given in camera, the court contradicts the relatively broad language of §2517(3), which states that wiretap evidence may be disclosed at “any proceeding” regardless of whether it is held in camera. Finally, the Seventh Circuit found that once wiretap evidence is sealed, nothing in Title III permits unsealing unless and until it is admitted into evidence in the criminal trial or in some “other public proceeding.” Again, this interpretation ignores the broad language of Title III which states that wiretap evidence may be disclosed “while giving testimony,” i.e., not necessarily admitted into evidence, “in any proceeding,” i.e., not necessarily a public proceeding.

IV. Conclusion


Thus, under the first part of the First Amendment public right of access, the Third Circuit is likely to find that a public right of access attaches to motions filed in suppression hearings. Under the second part of the analysis, the Third Circuit will balance the public’s interest in access against the defendant’s right of privacy protected by Title III. Here, the court is likely to rule in favor of access. Although the privacy interests protected by Title III will receive significant weight, several factors tip the balance in favor of granting the private civil litigant described above access to the wiretap evidence. First, the wiretap evidence concerns the prosecution of public officials for corruption related to their public office. Conversely, the court will give less weight to a public official’s argument that prejudicial pretrial publicity will interfere with his right to receive a fair trial. Second, the wiretap evidence itself involves the investigation and conduct of law enforcement officials. Third, the intercepted communications contain evidence relevant to the litigant’s civil case. Finally, where the defendant’s right to a fair trial or privacy interests are implicated, the court is likely to find that several alternatives short of closure sufficiently protect these interests. For instance, voir dire questioning of the jury would mitigate any adverse effects of enhanced publicity. In addition, portions of the intercepted communications can be sealed where the defendant’s legitimate privacy interests outweigh the right of access.

Footnotes


See, e.g., Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555 (1980); Press-Enterprise Co. v. Superior Court of California, 464 U.S. 501 (1984) (Press-Enterprise I); Waller v. Georgia, 467 U.S. 39 (1984); Press-Enterprise Co. v. Superior Court of California, 478 U.S. 1 (1986) (Press-Enterprise II). Although these cases generally involve the press petitioning the court for access, “it is well settled that the press enjoys the same right of access to public proceedings that the public in general enjoys.” United States v. Cianfrani, 573 F.2d 835, 861 (3d Cir. 1978) (citations omitted); see also Nixon v. Warner Communications, Inc., 435 U.S. 589, 609 (1978) (“The First Amendment generally grants the press no right to information about a trial superior to that of the general public. ‘Once beyond the confines of the courthouse, a news-gathering agency may publicize, within wide limits, what its representatives have heard and seen in the courtroom. But the line is drawn at the courthouse door; and within, a reporter’s constitutional rights are no greater than those of any other member of the public.’”) (citations omitted).
See Press-Enterprise II, 478 U.S. at 9.
Id.
Id.
See id.
Id. at 9.
See Waller, 467 U.S. at 47.
See United States v. Smith, 776 F.2d 1104, 1112 (3d Cir. 1985).
See, e.g., Cianfrani, 573 F.2d at 851; United States v. Martin, 746 F.2d 964, 969 (3d Cir. 1984); United States v. Kemp, 365 F. Supp. 2d 618, 634 (E.D.Pa. 2005).
448 U.S. at 575.
Id. at 564-575.
Id. at 569.
Id.
Id.
Id. at 571-72.
Id. at 571.
Id. at 572; see also United States v. Criden, 675 F.2d 550, 556 (3d. Cir. 1982) (Criden II) (“The Richmond Newspapers Court found open court proceedings to be mandated by at least six societal interests. First, public access to criminal proceedings promotes informed discussion of governmental affairs by providing the public with a more complete understanding of the judicial system. See id. at 572 (plurality opinion); id. at 584 (Stevens, J. concurring); Id. at 595-96 (Brennan, J., concurring in the judgment). This public access, and the knowledge gained thereby, serve an important ‘educative’ interest. See id. at 572 (plurality opinion). Second, public access to criminal proceedings gives ‘the assurance that the proceedings were conducted fairly to all concerned’ and promotes the public ‘perception of fairness.’ Id. at 569 (plurality opinion). Public confidence in and respect for the judicial system can be achieved only by permitting full public view of the proceedings. Id. at 595 (Brennan, J., concurring in the judgment). Third, public access to criminal proceedings has a ‘significant community therapeutic value’ because it provides an ‘outlet for community concern, hostility, and emotion.’ Id. at 570-71 (plurality opinion). Fourth, public access to criminal proceedings serves as a check on corrupt practices by exposing the judicial process to public scrutiny, thus discouraging decisions based on secret bias or partiality. See id. at 569 (plurality opinion). Fifth, public access to criminal proceedings enhances the performance of all involved. See id. at 569, n. 7 (plurality opinion). Finally, public access to criminal proceedings discourages perjury. See id. at 596-97 (Brennan, J., concurring in the judgment).
Id. at 575.
Id.
Id. at 576.
Id.
Id. at 577-78.
Press-Enterprise I, 464 U.S. at 505-09.
Id. at 508.
Waller, 467 U.S. at 47 (Although the Court analyzed the defendant’s Sixth Amendment claim to a public suppression hearing, it applied the reasoning of its First Amendment right of public access jurisprudence noting that “there can be little doubt that the explicit Sixth Amendment right of the accused is no less protective of a public trial than the implicit First Amendment right of the press and public.”).
Press-Enterprise II, 478 U.S. at 7.
Id. at 8.
Id.
Id.
Id. at 9.
Id. at 10.
Id.
Id. at 11-12.
Criden II, 675 F.2d at 554.
United States v. Simone, 14 F.3d 833, 840 (3d Cir. 1994).
See, e.g., Criden II, 675 F.2d at 555; Simone, 14 F.3d at 838.
Criden II, 675 F.2d at 555.
Id.
Id. at 556-57.
Simone, 14 F.3d at 838.
Id. at 839.
Id. at 840.
See Waller, 467 U.S. at 47; Criden II, 675 F.2d at 555.
Nixon, 435 U.S. at 597.
See United States v. Kushner, 349 F. Supp. 892, 898 (D.N.J. 2005).
United States v. Criden, 648 F.2d 814, 820 (3d Cir. 1981) (Criden I); see also Nixon, 435 U.S. at 597-98.
Nixon, 345 U.S. at 598.
Id.
Id.; see also Criden I, 648 F.2d at 829 (finding, under a common law right of access analysis, that the only justification supporting closure was the possibility that the tapes contained “scurrilous and libelous statements” about third parties).
Id. at 599.
See Smith, 776 F.2d 1104.
Id. at 1111-12.
Id. at 1112.
Id.
Id.
See, e.g., Smith, 776 F.2d 1111-12; Criden I, 648 F.2d at 820-22; Martin, 746 F.2d at 968.
648 F.2d at 821-22.
Id.
Id. at 829.
746 F.2d at 968 (“The common law right of access is not limited to evidence, but rather encompasses all ‘judicial records and documents’ . . . It includes ‘transcripts, evidence, pleadings, and other materials submitted by litigants.’”).
776 F.2d at 1111-12.
Id.
See Criden II, 675 F.2d at 555; Simone, 14 F.3d at 838.
Simone, 14 F.3d at 839.
See, e.g., Cianfrani, 573 F.2d at 851; Martin, 746 F.2d at 969; Smith, 776 F.2d at 1112; Kemp, 365 F. Supp. 2d at 634.
Cianfrani, 573 F.2d at 848.
Id. at 848, 851; see also Martin, 746 F.2d at 969 (3d Cir. 1984) (finding the public’s interest in access enhanced in the prosecution of police officers because the “integrity and efficiency of the police are matters that hit very close to home for most citizens.”); Smith, 776 F.2d at 1112 (noting that “[k]nowledge of the charge or charges is essential . . . to an appraisal of the fairness of the criminal process to the accused”).
Id. at 851.
Kemp, 365 F. Supp. 2d at 634.
Id.
See Criden I, 648 F.2d at 825.
See generally, Criden I , 648 F.2d at 820-21 (finding “‘the citizen’s desire to keep a watchful eye on the workings of public agencies’ and publication of ‘information concerning the operation of government’ are identical to the interests identified in [Richmond Newspapers].”); Criden II, 675 F.2d 550 at 556-57 (finding a First Amendment public right of access attaches to pretrial criminal hearings in part because it is often the only point in a criminal case where the conduct of law enforcement officers is at issue).
But see In re Motion to Unseal Electronic Surveillance Evidence, 990 F.2d 1015, 1020 (8th Cir. 1993) (en banc) (finding appellant’s presumed need for wiretap materials irrelevant absent statutory authority).
See Motion to Unseal, 990 F.2d at 1021 (Beam, J. dissenting) (citing Trammel v. United States, 445 U.S. 40, 50-51 (1980); see also United States v. Nixon, 418 U.S. 683, 710 (1974) (“Whatever their origins [constitutional, statutory, or common law], these exceptions to the demand for every man's evidence are not lightly created nor expansively construed, for they are in derogation of the search for truth.”).
See Criden II, 675 F.2d at 555.
Press-Enterprise II, 478 U.S. at 9.
Id. at 14.
Richmond Newspapers, 448 U.S. at 581.
Id.; see also Press-Enterprise I, 464 U.S. at 511.
See, e.g., Press-Enterprise I, 464 U.S. at 509-12; Waller, 467 U.S. at 48; Press-Enterprise II, 478 U.S. at 14.
See, e.g., Richmond Newspapers, 448 U.S. at 581; Press-Enterprise II, 478 U.S. at 15.
Press-Enterprise I, 464 U.S. at 512.
See, e.g., Smith, 776 F.2d at 1114; Criden I, 648 F.2d at 829.
Smith, 776 F.2d at 1114.
Id.
Criden I, 648 F.2d at 829.
Id. at 824-25.
Criden II, 675 F.2d at 562.
See Martin, 746 F.2d at 973 (finding “the appropriate course to follow when the spectre of prejudicial publicity is raised is not automatically to deny access but to rely primarily on the curative device of voir dire examination . . . voir dire remains a preferred and effective means of determining a juror’s impartiality and assuring the accused of a fair trial”); Criden I, 648 F.2d at 828 (finding that voir dire is “the traditional method of protecting defendants from the adverse effects of publicity”)

18 U.S.C. §2511(1)(a).
Id. at §2516; see also id. at §2511(2) (providing for exceptions not relevant here).
18 U.S.C. §2518(8)(a).
See id. at §§2515 & 2517. Sections 2511(1)(c) and 2520 also subject anyone who willfully discloses the contents of an interception that the person knows, or has reason to know, was intercepted in violation of Title III to criminal and civil liability.
Cianfrani, 573 F.2d at 855, n.7 (citing 18 U.S.C. §2517(1) & (2)) (“Disclosure by one law enforcement officer to another, and use of a communication by a law enforcement officer in the performance of his duty, are authorized if such disclosure or use is appropriate to the ‘proper performance of the official duties of the officer.”).
18 U.S.C. 2517(3).
See, e.g., Cianfrani, 573 F.2d at 855-56; In re New York Times Company, 828 F.2d 110, 115 (2d Cir. 1987); United States v. Dorfman, 690 F.2d 1230, 1232-33 (7th Cir. 1982); Motion to Unseal II, 990 F.2d at 1017-20.
S. Rep. No. 90-1097, at 66 (1968), reprinted in 1968 U.S.C.C.A.N. 2112, 2153
408 U.S. 41 (1972).
Id. at 48.
See id. at 47-48 (citing S. Rep. No. 90-1097, at 89 (1968), reprinted in 1968 U.S.C.C.A.N. 2112, 2177 (“As the congressional findings for Title III make plain, [the fundamental policy adopted by Congress on the subject of wiretapping and electronic surveillance] is strictly to limit the employment of those techniques of acquiring information: ‘To safeguard the privacy of innocent persons, the interception of wire or oral communications where none of the parties to the communication has consented to the interception should be allowed only when authorized by a court of competent jurisdiction and should remain under the control and supervision of the authorizing court.’”).
See Kimberly R. Thompson, Cell Phone Snooping: Why Electronic Eavesdropping Goes Unpunished, 35 AM. CRIM. L. REV. 137, 146 (citing S. Rep. No. 90-1097, at 89 (1968), reprinted in 1968 U.S.C.C.A.N. 2112, 2177) (“The Senate Judiciary Committee maintained that Title III was passed in order ‘to protect the privacy of wire and oral communications,’ and to strike a balance between the need for this protection and the governmental interest in fighting crime.”).
S. Rep. No. 90-1097, at 66 (1968), reprinted in 1968 U.S.C.C.A.N. 2112, 2153.
See Gelbard, 408 U.S. at 51-52
See S. Rep. No. 90-1097, at 89 (1968), reprinted in 1968 U.S.C.C.A.N. 2112, 2177 (“Interception of wire and oral communications should further be limited to certain types of offenses and specific categories of crime with assurances that the interception is justified and that the information obtained thereby will not be misused.”); S. Rep. No. 90-1097, at 90-91 (1968), reprinted in 1968 U.S.C.C.A.N. 2112, 2178-79 (“The proposed legislation is intended to protect the privacy of the communication itself . . . ‘contents’ when used with respect to any wire or oral communication, includes any information concerning the identity of the parties to such communication or the existence, substance, purport, or meaning of that communication. The definition thus includes all aspects of the communication itself. No aspect, including the identity of the parties, the substance of the communication between them, or the fact of the communication itself, is excluded. The privacy of the communication to be protected is intended to be comprehensive.”).
See, e.g., In re New York Times Co., 828 F.2d 110; United States v. Gerena, 869 F.2d 82 (2d Cir. 1989).
See In re New York Times, 828 F.2d at 115-16; Gerena, 869 F.2d at 85.
See Cianfrani, 573 F.2d at 856-59 (implicitly overruled by Gannett Co. v. Pasquale, 443 U.S. 368 (1979). Questions arguably exist as to Cianfrani’s continued validity. First, the court did not address whether there was a First Amendment public right of access to the suppression hearing. Rather, the court proceeded under the public trial provision of the Sixth Amendment, finding that the presumption of openness of criminal trials embodied by the Sixth Amendment applied to the public as well as the accused and that the presumption extended to suppression hearings. 573 F.2d at 852-54. This finding was implicitly overruled in Gannett where the United States Supreme Court held that “the Sixth Amendment's guarantee to the accused of a public trial gave neither the public nor the press an enforceable right of access.” Richmond Newspapers, 448 U.S. at 564 (citing Gannett, 443 U.S. at 394. In addition, the Third Circuit decided Cianfrani before the Supreme Court developed its modern First Amendment public right of access analysis and before the Supreme Court found that same analysis applied equally to a defendant’s Sixth Amendment right to a public trial. Waller, 467 U.S. at 46. In Cianfrani, because the court found a public right of access under the Sixth Amendment, it did not initially weigh the public’s interest to determine whether a constitutional right of access applied. 573 F.2d at 851. Nevertheless, the court applied a balancing test to determine whether access should actually be granted not unlike that of the second part of the First Amendment public right of access analysis. Id. at 851-52. Notwithstanding the aforementioned, the court’s interpretation of Title III presumably still stands.
See, e.g., Dorfman, 690 F.2d; Motion to Unseal II, 990 F.2d 1015.
573 F.2d at 860.
Id. at 847-49, 854.
Id. at 856-58.
Id.
Id. at 859.
Id. at 860.
Id.; Cf. Kemp, 365 F. Supp. 2d at 633 (“Title III materials are statutorily precluded from disclosure to the public prior to trial.”) (emphasis added).
See id. at 859.
Id. at 860.
Id.
See In re New York Times, 828 F.2d at 115-16; Gerena, 869 F.2d at 85. The Second Circuit’s earlier decision in In re Application of National Broadcasting Company, Inc., is presumably distinguishable on the basis that the wiretap evidence sought contained 667 reels of tape, that “the conversations of hundreds of persons” had been intercepted, and few of them had actually been investigated. 735 F.2d 51, 52 (2d Cir. 1984). In addition, the court’s decision in NBC made no mention of either a common law right of access or First Amendment right of access. See id.
In re New York Times, 828 F.2d at 114.
Id. at 115; Gerena, 869 F.2d at 85.
Id.
Id. at 114.
690 F.2d 1230.
Id. at 1232.
Id.
Id. at 1233.
Id.
Id.
Id.
Id. at 1233-34.
Id. at 1234.
Id.
Id.
965 F.2d 637 (8th Cir. 1992).
Id. at 638-39.
Id. at 639.
Id. at 641.
Id.
Id. (“In general, parties may obtain discovery ‘regarding any matter, not privileged, which is relevant to the subject matter involved in the pending action.’”).
990 F.2d at 1016-20 (Senior Circuit Judge Heaney, who dissented in Motion to Unseal I, authored the opinion for the majority, which was accompanied by the vigorous dissent of 5 judges).

Id. at 1017.
Id. at 1020.
Id.
See Cianfrani, 573 F.2d at 856-59; In re New York Times, 828 F.2d at 115-16; Gerena, 869 F.2d at 85.
18 U.S.C. §2517(3).
See id.; Cianfrani, 573 F.2d at 856-58.
Cianfrani, 573 F.2d at 860; In re New York Times, 828 F.2d at 115; Gerena, 869 F.2d at 85.
Id. at 860; In re New York Times, 828 F.2d at 114.
Id. at 856-58; In re New York Times, 828 F.2d at 115; Gerena, 869 F.2d at 85.
See Dorfman, 690 F.2d 1230; Motion to Unseal II, 990 F.2d at 1015.
Id. at 1233; Motion to Unseal II, 990 F.2d at 1020.
Id. at 1232; Motion to Unseal II, 990 F.2d at 1020.
See id. at 1233-34.
See id. at 1234.
Motion to Unseal II, 990 F.2d at 1022 (dissenting opinion) (citing Trammel, 445 U.S. at 50) (holding that “testimonial exclusionary rules and privileges contravene the fundamental principle that ‘the public has a right to every man’s evidence. As such, they must be strictly construed and accepted ‘only to the very limited extent that permitting a refusal to testify or excluding relevant evidence has a public good transcending the normally predominant principle of utilizing all rational means for ascertaining the truth.”); Nixon, 418 U.S. 683 (holding, with respect to limitations on evidence gathering, “whatever their origins [constitutional, statutory, or common law], these exceptions to the demand for every man’s evidence are not lightly created nor expansively construed, for they are in derogation of the search for truth.”)).
Id. (citing University of Pennsylvania v. EEOC, 493 U.S. 182, 189 (1990).
Dorfman, 690 F.2d at 1233.
See 18 U.S.C. §2517(3).
Dorfman, 690 F.2d at 1233.