Hepting et al v. AT&T Corp. et al

Filing 139

MOTION to Intervene and Unseal Documents filed by Lycos, Inc., Wired News. Motion Hearing set for 6/29/2006 02:00 PM in Courtroom 6, 17th Floor, San Francisco. (Attachments: # 1 Proposed Order)(Alger, Timothy) (Filed on 5/23/2006)

Hepting et al v. AT&T Corp. et al

Doc. 13

1 QUINN EMANUEL URQUHART OLIVER & HEDGES, LLP Timothy L. Alger (Bar No. 160303) 2 [e-mail] Leah J. Russin (Bar No. 225336) 3 [e-mail] 4 865 South Figueroa Street, 10th Floor 5 Los Angeles, California 90017-2543 Telephone: [phone] Facsimile: [phone] 7 Attorneys for Lycos, Inc. and Wired News 8 9 10 11 12 13 UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA SAN FRANCISCO DIVISION CASE NO. CV-06-0672-VRW NOTICE OF MOTION AND MOTION BY LYCOS, INC. AND WIRED NEWS FOR ORDERS (1) PERMITTING INTERVENTION, AND (2) UNSEALING DOCUMENTS; MEMORANDUM OF POINTS AND AUTHORITIES Hearing Date: June 29, 2006 Time: 2:00 p.m. Place: Courtroom 6, 17th Floor (Hon. Vaughn R. Walker) Complaint Filed: January 31, 2006

14 TASH HEPTING, GREGORY HICKS, CAROLYN JEWEL and ERIC 15 KNUTZEN on Behalf of Themselves 16 and All Others Similarly Situated, 17 18 19 21 22 23 24 25 26 27 28
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Plaintiffs, vs.

20 AT&T CORP., et al., Defendants.

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1 TO ALL PARTIES AND THEIR ATTORNEYS OF RECORD: 2 PLEASE TAKE NOTICE that, on June 29, 2006 at 2:00 p.m., proposed 3 intervenors Lycos, Inc., the owner and operator of Wired News, and Wired News, 4 will, and hereby do, move this Court for (1) an order granting intervention in this 5 action for the limited purpose of seeking the unsealing of certain documents; and (2) 6 an order removing the seal on the Declaration of Mark Klein and Exhibits A-C 7 (Docket No. 31) and the Declaration of J. Scott Marcus (Docket No. 32). 8 This motion is made on the grounds that Wired News is a news 9 organization and is permitted to intervene in this action pursuant Rule 24(b)(2) of 10 the Federal Rules of Civil Procedure for the purpose of vindicating the public 11 interest in access to court proceedings. San Jose Mercury News v. U.S. District 12 Court, 187 F.3d 1096, 1100 (9th Cir. 1999). Any private interest in keeping the 13 documents under seal is not compelling, and is far outweighed by the public interest 14 in access to the documents, given that they contain evidence that Defendants AT&T 15 Corp. and AT&T, Inc. (collectively "AT&T") intercepted voice and Internet 16 communications for the purpose of supplying those communications, without court 17 authorization, to the federal government. The documents have been placed at issue 18 by the litigants, and many of the documents already have been disclosed to the 19 public. Moreover, AT&T cannot establish that the documents, given their nature, 20 are trade secrets and merit confidential treatment by the Court. 21 This motion is based upon this Notice, the attached Memorandum of 22 Points and Authorities, all the pleadings, records and papers on file in this action, 23 such matters of which this Court may take judicial notice, and upon such other 24 // 25 // 26 // 27 28
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1 evidence and oral argument as may be considered by the Court before or at a 2 hearing on this Motion. 3 4 DATED: May 23, 2006 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
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Respectfully submitted, QUINN EMANUEL URQUHART OLIVER & HEDGES, LLP By /s/ Timothy L. Alger Timothy L. Alger Attorneys for Lycos, Inc. and Wired News

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TABLE OF CONTENTS Page

4 MEMORANDUM OF POINTS AND AUTHORITIES ........................................... 1 5 INTRODUCTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 6 ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 7 I. 8 9 11 12 13 14 15 16 17 19 20 21 22 23 24 25 26 27 28
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LYCOS AND WIRED NEWS SHOULD BE ALLOWED TO INTERVENE ................................................................................................. 2 JUDICIAL PROCEEDINGS HAVE A STRONG PRESUMPTION IN FAVOR OF OPENNESS ............................................................................... 3 MANY OF THE DOCUMENTS ALREADY ARE PUBLIC AND THEREFORE SHOULD NOT REMAIN UNDER SEAL.............................. 7 THE DOCUMENTS HAVE BEEN PLACED AT ISSUE AND SHOULD NEVER HAVE BEEN FILED UNDER SEAL.............................. 8 A. The Seal Imposes an Undue Burden on the Public's Right of Access .................................................................................................. 8 1. 2. B. Wired News has a First Amendment Right of Access................. 9 Wired News has a Common Law Right of Access...................... 9

II.

10 III. IV.

AT&T Cannot Establish That the Documents Should Remain Sealed ................................................................................................. 11

18 CONCLUSION ...................................................................................................... 13

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TABLE OF AUTHORITIES Page Cases Bartnicki v. Vopper, 532 U.S. 514 (2001) .................................................................................... 12, 13

6 Beckman Indus., Inc. v. International Ins. Co., 966 F.2d 470 (9th Cir. 1992) ............................................................................... 2 7 Brown & Williamson Tobacco Corp. v. F.T.C., 710 F.2d 1165 (6th Cir. 1983) ......................................................................... 4, 5 8 9 Matter of Cont'l Illinois Sec. Litig., 732 F.2d 1302 (7th Cir. 1984) ............................................................................. 5 10 Cox Broadcasting Corp. v. Cohn, 420 U.S. 469 (1975) ........................................................................................ 6, 7 11 12 Foltz v. State Farm Mutual Auto Ins. Co., 331 F.3d 1122 (9th Cir. 2003) ................................................................. 5, 10, 11 13 Globe Newspapers Co. v. Superior Court, 457 U.S. 596 (1982) ............................................................................................ 2 14 15 Grove Fresh Distrib., Inc. v. Everfresh Juice Co., 24 F.3d 893 (7th Cir. 1994) ................................................................................. 6 16 Joy v. North, 692 F.2d 880 (2d Cir. 1982) ................................................................................ 5 17 18 Kamakana v. City & County of Honolulu, __ F.3d __, No. 04-15241, 2006 WL 1329926 (9th Cir. 2006) ............ 6, 9, 10, 11 19 Religious Tech. Ctr. v. Netcom On-Line Comm. Servs., 923 F.Supp. 1231 (N.D. Cal. 1995) ..................................................................... 7 20 21 NBC Subsidiary (KNBC-TV), Inc. v. Superior Court, 20 Cal. 4th 1178, 86 Cal. Rptr. 2d 778, 980 P.2d 337 (1999)............................... 9 22 Nebraska Press Ass'n v. Stuart, 423 U.S. 1327 (1975) .......................................................................................... 6 23 24 New York Times Co. v. United States, 403 U.S. 713 (1971) .......................................................................................... 10 25 Oregonian Publishing Co. v. U.S. District Court, 920 F.2d 1462 (9th Cir. 1990) ............................................................................. 8 26 27 Press-Enterprise Co. v. Superior Court, 478 U.S. 1 (1986) ................................................................................................ 9 28
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1 Publicker Indus., Inc. v. Cohen, 733 F.2d 1059 (3d Cir. 1984)............................................................................... 5 2 Reno v. American Civil Liberties Union, 521 U.S. 844 (1997) ............................................................................................ 8 3 4 Republic of the Philippines v. Westinghouse Elec. Corp., 949 F.2d 653 (3d Cir. 1991) ................................................................................ 5 5 Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555 (1980) ........................................................................................ 3, 4 6 7 San Jose Mercury News v. U.S. District Court, 187 F.3d 1096 (9th Cir. 1999) ..................................................................... 2, 6, 8 8 Washington Post v. Robinson, 935 F.2d 282 (D.C. Cir. 1991) ............................................................................. 8 9 10 Wilson v. American Motors Corp., 759 F.2d 1568 (11th Cir. 1985) ........................................................................... 5 11 12 Statutes 13 Cal. Civ. Code § 3426.1............................................................................................ 7 14 Federal Rules of Civil Procedure, Rule 24(b) ........................................................... 2 15 16 17 18 19 20 21 22 23 24 25 26 27 28
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Other Authorities Time, "Does This Man Have Your Number?" May 22, 2006 .................................................................................................... 10

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MEMORANDUM OF POINTS AND AUTHORITIES INTRODUCTION In this class-action lawsuit, telephone and Internet customers accuse the

5 nation's largest telecommunications company of breaking the law by intercepting 6 communications and providing them to the United States Government without court 7 approval. For more than 200 years, Americans have understood that they have a 8 right to engage in private communications, without fear that the government (unless 9 it obtains a warrant) is listening in. During the past six months, it has come to light 10 that the federal government has undertaken an ambitious effort to track and monitor 11 a mind-numbing volume of communications carried over telephone lines operated 12 by, among others, Defendants AT&T Corp. and AT&T, Inc. (collectively "AT&T"). 13 The manner in which AT&T has assisted the government in its 14 domestic spying program is a matter of intense public interest. The Electronic 15 Frontier Foundation ("EFF") has sued AT&T on behalf of the carrier's customers 16 and, in support of that lawsuit, EFF has filed under seal the Declaration of Mark 17 Klein, a former AT&T technician, about 100 pages of exhibits, and the Declaration 18 of J. Scott Marcus, an expert who reviewed Klein's information. Klein has 19 disseminated some of the documents he possesses to EFF and the news media, and 20 freely acknowledged this in court papers. Given that AT&T, EFF, Klein, an EFF21 retained expert, the government, and the Court have possession of the documents, it 22 appears that the only people who do not know what evidence has been submitted by 23 EFF to support its claims are those with the greatest interest ­ the American public. 24 Moreover, the course of events has overtaken the sealing order. On 25 May 22, 2006, Wired News, which is owned and operated by Lycos, Inc., published 26 29 pages of documents that it understands are among the documents that were 27 exhibits to the Klein Declaration and remain under seal. Wired News obtained the 28 documents lawfully. It is clear from the documents that the allegations of EFF,
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1 based on evidence provided by Klein, depend on a review and consideration of all 2 the records, including many that do not belong to AT&T. The public can evaluate 3 the credibility of the plaintiffs' case only through disclosure of documents which, 4 according to EFF, are the principal basis for its claims, and which allegedly entitle 5 plaintiffs to litigate notwithstanding the state-secret privilege asserted by the 6 government. (See Docket No. 134 at 5-7 (Plaintiffs' Memo. in Response to 5/17/06 7 Order).) 8 It is unclear whether all of the documents published by Wired News are 9 among the sealed documents. Even if they are, the contents of the other materials 10 (approximately 70 pages) filed with the Court are unknown. Wired News, on behalf 11 of itself and the public, has an interest ­ which has been repeatedly recognized by 12 the Ninth Circuit and other courts ­ in obtaining the disclosure of the documents 13 filed under seal. The American people are entitled to understand this Court's 14 proceedings and view the documents that appear to contain evidence supporting 15 grave claims against AT&T. Accordingly, Lycos, Inc. and Wired News should be 16 allowed to intervene for the limited purpose of seeking the unsealing of documents. 17 18 19 I. 20 ARGUMENT LYCOS AND WIRED NEWS SHOULD BE ALLOWED TO INTERVENE Media organizations are permitted to intervene to be heard on issues

21 related to the sealing of documents. Globe Newspapers Co. v. Superior Court, 457 22 U.S. 596, 609 n.25 (1982). Accordingly, motions to intervene are routinely granted 23 where the media seek the unsealing of documents or open court proceedings. See, 24 e.g., San Jose Mercury News v. U.S. District Court, 187 F.3d 1096, 1100 (9th Cir. 25 1999); see also Beck man Indus., Inc. v. International Ins. Co., 966 F.2d 470, 473 26 (9th Cir. 1992) (endorsing Rule 24(b) intervention to challenge protective order). 27 Here, Lycos, Inc. and Wired News should be heard on the issue of whether the Klein 28 Declaration and its exhibits, and the Marcus Declaration, should remain under seal.
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1

Wired News has a unique perspective in this case. Wired News has

2 been at the forefront of news coverage of this controversy and litigation. It has 3 obtained and published many of the documents at issue. On May 17, 2006, Wired 4 News published a statement written by Klein in 2004 that describes fiber-optic 5 splitting equipment installed by AT&T in San Francisco that intercepts voice and 6 Internet communications on the AT&T network and routes those communications to 7 a room controlled by the federal government. The remainder of documents that are 8 in Wired News' possession were posted on May 22, 2006, at 9 www.wired.com/news/technology/0,70944-0.html?tw=wn_index_2. 10 Nevertheless, important documents remain under seal, and AT&T is 11 likely to continue to contend that the documents are trade secrets. It is the view of 12 Wired News that the Klein and Marcus declarations and the balance of the Klein 13 exhibits are of great public interest and have little, if any, value as trade secrets. The 14 presumption of access to court documents and proceedings requires an order 15 unsealing the Declaration of Mark Klein and Exhibits A-C and the Declaration of J. 16 Scott Marcus. Accordingly, Lycos, Inc. and Wired News request, through limited 17 intervention, the opportunity to address the Court on this issue. 18 19 II. 20 21 JUDICIAL PROCEEDINGS HAVE A STRONG PRESUMPTION IN FAVOR OF OPENNESS Open judicial proceedings are an essential element of our system of

22 law. Transparency increases the likelihood of fairness and justice and continued 23 confidence by the American public in the courts. As a matter of both constitutional 24 law and common law, our courts consistently have held that judicial proceedings 25 should be conducted in public. 26 28
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In Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555 (1980), the

27 United States Supreme Court announced that criminal proceedings were

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1 presumptively open under the First Amendment. Presumptive openness "is no quirk 2 of history," the Court said. 3 4 5 6 7 8 10 [R]ather, it has long been recognized as an indispensable attribute of an Anglo-American trial. Both Hale in the 17th century and Blackstone in the 18th saw the importance of openness to the proper functioning of a trial; it gave assurance that the proceedings were conducted fairly to all concerned, and it discouraged perjury, the misconduct of participants, and decisions based on secret bias or partiality. While the Supreme Court did not reach the question of whether civil

9 Id. at 569. 11 proceedings must be open, the majority opinion noted that "historically both civil 12 and criminal trials have been presumptively open." Id. at 580 n.17; see also id. at 13 599 (Stewart, J., concurring) ("the First and Fourteenth Amendments clearly give 14 the press and public a right of access to trials themselves, civil as well as criminal" 15 (emphasis added)). Indeed, the same policy rationales for open criminal 16 proceedings recognized in Richmond Newspapers apply to civil proceedings, as the 17 Sixth Circuit explained in the watershed case, Brown & Williamson Tobacco Corp. 18 v. F.T.C., 710 F.2d 1165 (6th Cir. 1983): 19 20 21 22 23 24 25 26 27 28
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The resolution of private disputes frequently involves issues and remedies affecting third parties or the general public. The community catharsis, which can only occur if the public can watch and participate, is also necessary in civil cases . . . . In either the civil or criminal courtroom, secrecy insulates the participants, masking impropriety, obscuring incompetence, and concealing corruption. Finally, the fact-finding considerations relied upon by Justice Brennan [in Richmond Newspapers] obviously apply to civil cases. Openness in the courtroom discourages perjury and may result in

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witnesses coming forward with new information regardless of the type of proceeding. Likewise, in Publicker Indus., Inc. v. Cohen, 733 F.2d 1059 (3d Cir.

3 Id. at 1179. 5 1984), the Third Circuit vacated an order sealing the transcript of a hearing that 6 concerned supposedly confidential business information. The court recognized a 7 right of access to civil trials under both the First Amend ment and common law: 8 9 10 11 12 13 14 15 16 A presumption of openness inheres in civil trials as in criminal trials. We also conclude that the civil trial, like the criminal trial, "plays a particularly significant role in the functioning of the judicial process and the government as a whole" . . . Public access to civil trials, no less than criminal trials, plays an important role in the participation and the free discussion of governmental affairs. Therefore, we hold that the "First Amendment embraces a right of access to [civil] trials . . . to ensure that this constitutionally protected 'discussion of governmental affairs' is an informed one."

17 Id. at 1070 (citations omitted); see also Matter of Cont'l Illinois Sec. Litig., 732 F.2d 18 1302, 1308-09 (7th Cir. 1984) (court granted newspapers access to report prepared 19 by corporation and admitted into evidence in shareholders' derivative suit); Wilson 20 v. American Motors Corp., 759 F.2d 1568, 1570-71 (11th Cir. 1985) (common law 21 right of access to documents introduced into evidence in case settled before reached 22 verdict); Joy v. North, 692 F.2d 880, 894 (2d Cir. 1982) (vacating protective order 23 for report of corporation's litigation committee which was filed with court in 24 shareholder's derivative suit). 25 Business embarrassment does not rebut the presumption of access. 26 Foltz v. State Farm Mutual Auto Ins. Co., 331 F.3d 1122, 1136 (9th Cir. 2003); 27 Republic of the Philippines v. Westinghouse Elec. Corp., 949 F.2d 653, 663 (3d Cir. 28 1991). Moreover, the presumption of access requires "immediate and
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1 conte mporaneous" access. Grove Fresh Distrib., Inc. v. Everfresh Juice Co., 24 2 F.3d 893, 897 (7th Cir. 1994). "To delay or postpone disclosure undermines the 3 benefit of public scrutiny and may have the same result as complete suppression." 4 Id. Any delay, even a single day, can be an undue burden on the public's right of 5 access: 6 7 8 9 10 11 13 stay). 14 The Ninth Circuit has not yet reached the question of whether the First 15 Amendment requires access to civil proceedings, but it has recognized, and 16 repeatedly enforced, a strong presumption of access under common law. See, e.g., 17 San Jose Mercury News, 187 F.3d at 1100-02 (declining to address First 18 Amendment question, but relying on federal common law to find a right of public 19 access to court documents in a civil case); Kamakana v. City & County of Honolulu, 20 __ F.3d __, No. 04-15241, 2006 WL 1329926 at *3 (9th Cir. 2006) (describing the 21 historical right of access to civil court filings). 22 In Cox Broadcasting Corp. v. Cohn, 420 U.S. 469 (1975), the United 23 States Supreme Court expressly recognized the public's strong interest in receiving 24 information from official court records, even though there was a state statute to the 25 contrary. Although the Court was not directly faced with the issue of access, it held 26 that this strong public interest, embodied in the First Amendment, protected the 27 media from liability for accurate publication of judicial records: 28
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Where . . . a direct prior restraint is imposed upon the reporting of news by the media, each passing day may constitute a separate and cognizable infringement of the First Amendment. The suppressed information grows older. Other events crowd upon it. To this extent, any First Amendment infringement that occurs with each passing day is irreparable.

12 Nebraska Press Ass'n v. Stuart, 423 U.S. 1327, 1330 (1975) (Blackmun, J., granting

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The freedom of the press to publish [information in judicial records] appears to us to be of critical importance to our type of government in which the citizenry is the final judge of the proper conduct of public business. In preserving that form of government the First and Fourteenth Amendments command nothing less than that the States may not impose sanctions on the publication of truthful information contained in official court records open to public inspection.

8 Id. at 495. The Supreme Court reached this result despite the sensitive nature of the 9 information involved ­ the name of a rape victim. 10 11 III. 12 13 MANY OF THE DOCUMENTS ALREADY ARE PUBLIC AND THEREFORE SHOULD NOT REMAIN UNDER SEAL It is black-letter law that information cannot be a trade secret once it is

14 publicly available. See Cal. Civ. Code § 3426.1 (trade secret is one that is not 15 generally known); Religious Tech. Ctr. v. Netcom On-Line Comm. Servs., 16 923 F.Supp. 1231, 1255-57 (N.D. Cal. 1995). A complete set of the documents has 17 been made available to the plaintiffs in this case and the United States government. 18 (Docket No. 111 at 2 (Klein Motion for Leave to File an Amicus Brief).) Klein also 19 acknowledges giving documents to the news media. (Id.) Such wide dissemination 20 defeats any claim AT&T might have that the documents contain information that 21 can reasonably viewed as trade secrets today. 22 Additionally, beyond the disclosure by Klein, many of the documents 23 at issue have been made available to the general public on the Internet. Klein's 24 assertions that the AT&T equipment described in some of the documents is used to 25 intercept communications for the National Security Agency stand or fall on the 26 entire compilation of documents provided by Klein to EFF and filed with the Court. 27 Reasonable readers might come to differing conclusions about the credibility of 28 Klein's views and, in turn, the evidentiary support for EFF's lawsuit. Accordingly,
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1 on Monday, May 22, 2006, 29 pages, including the Klein statement from 2004 and 2 eight pages of AT&T company documents, were made available on Wired News' 3 Website. In light of this broad public disclosure, the seal on the balance of the 4 documents, along with the Klein and Marcus declarations, should be lifted. 5 6 IV. 7 8 9 THE DOCUMENTS HAVE BEEN PLACED AT ISSUE AND SHOULD NEVER HAVE BEEN SEALED A. The Seal Imposes an Undue Burden on the Public's Right of Access The news media, as representatives of the public, have a right of access

10 to documents grounded in the First Amendment and common law. Washington Post 11 v. Robinson, 935 F.2d 282, 287-88 (D.C. Cir. 1991) (First Amendment right of 12 access); Oregonian Publishing Co. v. U.S. District Court, 920 F.2d 1462, 1465 (9th 13 Cir. 1990) ("the press and the public have a presumed right of access to court 14 proceedings and documents"); San Jose Mercury News, Inc. v. U.S. District Court, 15 187 F.3d 1096, 1100-02 (9th Cir. 1999) (common law right of access). Under both 16 the First Amendment and the common law, Wired News should be entitled to full 17 access to the documents filed in this action to which there is no valid claim of state 18 secrets privilege. 19 The documents at issue are not state secrets. Rather, they describe the 20 manner in which AT&T intercepted voice and Internet communications by installing 21 splitters on large fiber-optic cables carrying huge volumes of data. Despite their 22 technical nature, they are critical evidence in this lawsuit and the public debate over 23 the actions of AT&T and the government. Interception of such communications 24 strikes at the heart of free speech and the right of privacy. The Internet "is the most 25 participatory form of mass speech yet developed ... entitled to the highest protection 26 from governmental intrusion." Reno v. American Civil Liberties Union, 521 U.S. 27 844, 863 (1997) (internal citations omitted). The public has a vital need to 28 understand the claims made in this lawsuit and the evidence that supports them.
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1 2 3 1. Wired News has a First Amendment Right of Access In determining whether the First Amendment right of public access

4 extends to a particular type of proceeding, the Supreme Court considers "whether 5 the place and process have historically been open to the press and general public" 6 and "whether public access plays a significant positive role in the functioning of the 7 particular process in question." Press-Enterprise Co. v. Superior Court, 478 U.S. 1, 8 8 (1986). Civil courts have traditionally been open to the press and the public. It is 9 only under rare and unusual circumstances that courts maintain documents under 10 seal which are at the heart of one litigant's claims against the other ­ as is the 11 situation here. See NBC Subsidiary (KNBC-TV), Inc. v. Superior Court, 20 Cal. 12 4th 1178, 1210-11, 86 Cal. Rptr. 2d 778, 803-04, 980 P.2d 337 (1999) (recognizing 13 First Amendment right of access to civil proceedings that can be limited only in 14 exceptional circumstances). 15 16 17 2. Wired News has a Common Law Right of Access The Ninth Circuit has explained that there is a "strong presumption in

18 favor of access" to court documents. Kamakana v. City & County of Honolulu, __ 19 F.3d __, No. 04-15241, 2006 WL 1329926 at *3-4 (9th Cir. 2006). To overcome 20 this presumption and filed documents under seal, a litigant must articulate 21 "compelling reasons supported by specific factual findings" Id. at *4 (emphasis 22 added; internal quotations omitted). Furthermore, the articulated reasons must 23 outweigh the "general history of access and the public policies favoring 24 disclosure..." Id. Documents that are related to dispositive motions are subject to 25 this "compelling interest" test. Id. 26 The documents at issue in this litigation support the allegations in 27 Amended Complaint and were submitted by EFF in support of its motion for 28 preliminary injunction. (Docket Nos. 31, 32.) Given that AT&T and the
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1 government have filed motions to dismiss, these supporting materials form the basis 2 of the matter presented to this Court for adjudication, and EFF makes that clear in its 3 Memorandum filed on May 22, 2006. (Docket No. 134, at 5-7.) There, plaintiffs 4 contend that their case should be heard by the Court, notwithstanding the 5 government's assertion of the state-secret privilege, because "[t]he facts needed to 6 prove a violation of Title III are contained within the documents submitted to the 7 Court in support of the motion for preliminary injunction, including the Declaration 8 of Mark Klein and exhibits thereto, or are already within the public domain." (Id. at 9 6.) In plaintiffs' view, they "need prove only that the communications were 10 unlawfully intercepted. Plaintiffs need not prove what the government did with 11 them." (Id.) 12 Documents such as these, on which a lawsuit stands or falls, 13 consistently have been treated by the courts as public records. Foltz v. State Farm 14 Mutual Auto Ins. Co., 331 F.3d 1122 (9th Cir. 2003). The Court cannot reach 15 plaintiffs' argument without considering the sealed documents. And public 16 treatment is especially appropriate given the highly controversial nature of the 17 activities of AT&T that the documents apparently describe. In contrast, AT&T has 18 made no particularized showing of a compelling interest. AT&T's conclusory 19 assertion that these documents are proprietary is unpersuasive in the context of a 20 raging national debate regarding the apparent cooperation of the nation's largest 21 telecommunications company in a broad domestic spying program. 22 In the last week, national newsweeklies had covers on the government's 23 domestic spying program. (See, e.g., Time, "Does This Man Have Your Number?" 24 May 22, 2006.) The controversy has become particularly heated with the 25 nomination of General Michael Hayden, who headed the National Security Agency 26 when the program was initiated, to head the CIA. The debate cannot be held behind 27 closed doors, and the evidence that bears on the issue cannot be kept in sealed 28 envelopes locked in a courthouse. As Justice Black wrote in the "Pentagon Papers"
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1 decision: "Only a free and unrestrained press can effectively expose deception in 2 government. And paramount among the responsibilities of a free press is the duty to 3 prevent any part of the government from deceiving the people . . . ." New York 4 Times Co. v. United States, 403 U.S. 713, 717 (1971) (Black, J., concurring). 5 6 7 B. AT&T Cannot Establish That the Documents Should Remain Sealed Regardless of whether the media's right of access is grounded in the

8 First Amendment or the common law, the party who seeks to block access faces an 9 extremely high hurdle. AT&T must establish that there is a compelling interest in 10 maintaining the documents in secrecy, and that there is no less restrictive means 11 than sealing. Foltz, 331 F.3d at 1125. 12 The government has not asserted that the documents in question raise 13 concerns about national security; it has merely stated that it does not object to 14 AT&T filing them under seal. (Docket No. 43, at 19 (Coppolino letter to EFF).) 15 Rather, the only rationale offered for sealing the records is AT&T's assertion that 16 they contain trade secrets. In light of the public disclosure of many of the 17 documents on the Internet, there is no longer any merit in that assertion. Once trade 18 secrets are made public, the rationale to retain them as protected evaporates. 19 AT&T has not established that it will suffer some competitive 20 disadvantage if the documents are unsealed. AT&T's competitors certainly 21 understand how to tap into their own networks. There is no "market" for 22 information on how to install splitters in a fiber-optic network. The information in 23 dispute here has no commercial value; rather, it is simply embarrassing to AT&T, 24 and that does not justify sealing. See Kamakana, 2006 WL 1329926 at *4 ("The 25 mere fact that the production of records may lead to a litigant's embarrassment, 26 incrimination, or exposure to further litigation will not, without more, compel the 27 court to seal its records."). 28
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1

AT&T has argued that the documents reveal enough detail about how

2 the AT&T system works that they may make the system susceptible to hackers, and 3 AT&T raises the specter of terrorist attacks on the telephone communications 4 infrastructure. The documents, however, show a method of intercepting 5 communications in a secure location within AT&T's infrastructure, accessible only 6 to AT&T technicians and, apparently, government agents. AT&T raises "hackers" 7 as a hobgoblin because it cannot think of any other justification for covering up 8 evidence that it helped the government spy on AT&T customers. 9 When scrutinized, AT&T's effort to keep the documents under seal is 10 strikingly similar to, and defies the holding of, Bartnicki v. Vopper, 532 U.S. 514 11 (2001). After a tape recording of an intercepted cell phone conversation ­ in which 12 the plaintiffs seemed to discuss physical violence against members of the local 13 school board ­ was provided to and broadcast by the media, the plaintiffs sued under 14 the federal eavesdropping statute. The Supreme Court affirmed dismissal of the 15 action. Where public affairs are implicated, the Court said, privacy concerns must 16 yield: "The enforcement of [the eavesdropping statute] in these cases . . . implicates 17 the core purposes of the First Amendment because it imposes sanctions on the 18 publication of truthful information of public concern." Id. at 533-34. 19 Here, we have the public's profound interest in knowing whether the 20 government, with the assistance of the nation's largest telecommunications 21 company, tapped into millions of telephone conversations and Internet 22 communications, possibly in violation of law. On the other hand, we have AT&T's 23 apparent embarrassment that it readily acquiesced to the government's request for 24 cooperation ­ evidently without any court authorization or extra-judicial approval. 25 Any proprietary value that AT&T sees in technical documents describing the 26 manner in which the lines were tapped must yield to the public's right to be 27 informed about behavior that implicates the fundamental rights of many millions of 28 Americans. Justice Breyer's concurrence in Bartnicki is equally applicable here:
18125/1887966 . 2

Case No. CV-06-0672-VRW -12LYCOS AND WIRED'S MOTION TO INTERVENE AND UNSEAL

1 2 3 4 5 6 7 9 10 11

[T]he subject matter . . . is far removed from that in situations where the media publicizes truly private matters [or, in this case, actual trade secrets]. . . . Here, the speakers' legitimate privacy expectations are unusually low, and the public interest in defeating those expectations is unusually high. Given these circumstances, along with the lawful nature of respondents' behavior, the statutes' enforcement would disproportionately harm media freedom.

8 Bartnicki, 532 U.S. at 540 (Breyer, J., concurring). CONCLUSION Because Lycos, Inc. and Wired News have an important interest in

12 vindicating the public's right of access to these proceedings, they should be 13 permitted to intervene for the limited purposed of challenging the sealing of 14 documents. 15 Further, there is no reason, let alone a compelling reason, to keep under 16 seal the Declaration of Mark Klein and Exhibits A-C (Docket No. 31) and the 17 Declaration of J. Scott Marcus (Docket No. 32). The documents should be 18 unsealed. 19 20 DATED: May 23, 2006 21 22 23 24 25 26 27 28
18125/1887966 . 2

Respectfully submitted, QUINN EMANUEL URQUHART OLIVER & HEDGES, LLP By /s/ Timothy L. Alger Timothy L. Alger Attorneys for Lycos, Inc. and Wired News

Case No. CV-06-0672-VRW -13LYCOS AND WIRED'S MOTION TO INTERVENE AND UNSEAL