Ninth Circuit Court Rules Forbes Media Not Entitled to Information in Sealed Files

The decision by the U.S. Ninth Circuit Court of Appeals regarding Forbes Media and editor Thomas Brewster’s request to review secret federal files is that Forbes is not allowed to any information in sealed court records. The author of the decision was Circuit Judge Daniel Aaron Bress, and it further affirms the orders by District Court Judges Phyllis J. Hamilton of the Northern District of California and Ricardo S. Martinez of the Western District of Washington, denying petitions to unseal court records.

The order came in the case of Forbes Media LLC v. United States, 21-16233. The ruling was based on the 1789 All Writs Act, which allows federal courts to “issue all writs necessary or appropriate in aid of their respective jurisdictions and agreeable to the usages and principles of law.”

The opinion states that there is no First Amendment or Common Law Right of Access to Court Orders. The decision also reinforces the rule that this law is required to assist in the “apprehension of suspected criminals."

The history of this case reaches back to when Forbes Media and journalist/editor Thomas Brewster were working on an investigative article about how the federal government’s usage of statutory rights impacted private businesses. Forbes and Brewster were blocked from getting the information they needed because it was in sealed court files.

The story Forbes and Brewster were working on involved an online travel booking agency, Sabre, and the way the Feds used their statutory rights to compel the company to share private information about travelers who used their technology. Their questions were, in part, how does the federal government force private businesses to share private information or even carry on hidden investigations for the feds, about their clients who may or may not be criminals?

In response to being blocked from getting information, in 2020 Brewster secured an All Writs Act ("AWA") application, available from the public docket of the Southern District of California ("S.D. Cal. Application").

In this file, it stated Sabre would “assist in the execution of a federal arrest warrant by periodically reviewing its records for evidence that the subject of the arrest warrant is traveling.”

These files, Brewster discovered, had erroneously been unsealed in 2020. The AWA, as seen in an official court stamp marked on February 14, 2020, showed that Sabre was “requested…to provide representatives of the FBI complete and contemporaneous ‘real time’ account activity" for an individual subject to an arrest warrant—what the government refers to as a "hot watch" order.

In his 2020 online article, Brewster wrote, in part, “The First Amendment and common law rights to public access that petitioners invoke are neither all-encompassing nor absolute. In this case, we hold that those rights are not so expansive as to encompass the materials sought here—materials that have traditionally been maintained under seal to avoid exposing the government’s criminal investigations and compromising its pursuit of fugitives.”

Forbes and Brewster’s request to have access to other sealed files, as stated in the Ninth Circuit Court’s ruling, was denied, with the decision noting that neither First Amendment rights or common law provide any legal right of access to accessing such sealed court documents.

“The First Amendment and common law rights to public access that petitioners invoke are neither all-encompassing nor absolute,” said Bress in his ruling. “In this case, we hold that those rights are not so expansive as to encompass the materials sought here—materials that have traditionally been maintained under seal to avoid exposing the government’s criminal investigations and compromising its pursuit of fugitives.”