The FBI May Have Violated Federal Law with Rosen Search

Posted on May 21, 2013 by

by Matthew L. Schafer

In May of 2010, a special agent from the FBI filed a request for a search warrant relating to a leak of national security information that found its way into the news.  The warrant, which was approved on May 28, 2010 and served on Google, ordered the popular email provider to produce certain emails from FOX News reporter James Rosen’s personal email account.

Notably, unlike the recent subpoena in the AP case, the warrant issued to Google was relatively narrow.  It required Google only to hand over the reporter’s emails between the reporter and his alleged source and emails sent over a short, two-day period around the time the article was published.

Nonetheless, the warrant has sparked outrage among the press.  As the Washington Post explained, quoting First Amendment lawyer Charles Tobin, “Search warrants like these have a severe chilling effect on the free flow of important information to the public.  That’s a very dangerous road to go down.”

From what is publicly known, the government had not – since the passage of the Espionage Act in 1917 – ever alleged in a legal document that a journalist violated the  Act – until now.

The FBI official in this case relied on three statutes to travel this dangerous road.  First, a federal statute specifically allows the government to search through citizens’ emails.  Second, another allows the government to do so even where the emails sought are communications between a reporter and confidential sources so long as the information relates to the disclosure of national security information under the third and final statute.

Under the Electronic Communications Privacy Act (ECPA), the first statute, the government must obtain a search warrant for emails only if the emails sought are less than 180 days old.  If they are more than 180 days old, the government can obtain the records through a subpoena or a warrant.  The advantage to the government in seeking a warrant after the 180-day period is that they do not have to provide prior notice to the party whose emails are sought.

Normally, journalists would be exempt from ECPA’s lenient standards for the production of emails under the Privacy Protection Act (PPA).  The PPA was passed after the Supreme Court found no constitutional violation where police searched the newsroom of Stanford’s student newspaper with the hopes of seizing photos revealing criminality related to student protests.

Under the PPA, the government can search or seize a journalist’s work product or other documents if it is more likely than not that the reporter is “committing a criminal offense.”

There is an exception though: Even if the reporter is committing a criminal offense, it is unlawful for a government employee to search or seize a journalist’s work product if the only alleged offense “to which the materials relate consists of the receipt, possession, communication, or withholding of such materials.”

Thus, it might seem that illegal possession of classified information would still be protected by the PPA, where the only crime the government alleges is a reporter’s possession of classified information itself.

That is not the case.  When the information that the journalist received, possessed, or communicated is related “to the national defense, classified information, or restricted data [under the Espionage Act],” the exception does not apply.

Thus, if the government can show that the journalist violated the Espionage Act then, it can apply for a search warrant for the reporter’s work product notwithstanding the initial appearance that the PPA would protect the reporter’s work product.

Congressman Jack Kemp (R-NY) summed up the PPA before its near-unanimous approval in the House, “[The Privacy Protection Act] would not prevent the police from conducting necessary searches, but simply require them to obtain a subpoena (which involves a court hearing where the newspapers can state their case) instead of a search warrant (where the newspapers have no say).”

The Espionage Act, which the PPA incorporates in part when reporters possess classified information, is a World War I law that makes it, among other things, unlawful for someone who “ha[s] unauthorized possession of [sensitive information] relating to the national defense . . . willfully communicates . . . the same to any person not entitled to receive it . . . [s]hall be fined under this title or imprisoned not more than ten years, or both.”

In Rosen’s case, the government sought Rosen’s emails in connection with an investigation of Stephen Jin-Woo Kim, a government employee who allegedly disclosed to Rosen the contents of a classified report relating to North Korea’s nuclear capabilities.

Under ECPA, the government legally could, and chose to, get a warrant for Rosen’s emails and, therefore, did not have to give Rosen notice of the warrant.  Thus, Rosen did not have a chance to contest the seizure of his emails before the government forced Google to turn over the emails.

The FBI official wrote in an affidavit requesting a warrant against FOX News reporter James Rosen, “[T]here is probable cause to believe that the Reporter has committed a violation of [the Espionage Act], at the very least, either as an aider, abettor and/or co-conspirator of Mr. Kim.”

Despite ECPA, the government, under the PPA, was prohibited from obtaining a search warrant unless it could also show that Rosen received or possessed national security information in violation of the Espionage Act.  In other words, to get at Rosen’s emails, the government had to allege that Rosen, as a reporter, violated the Espionage Act and, as such, was not deserving of the PPA protections.

That is exactly what the government officials did in this case, writing, “[T]here is probable cause to believe that the Reporter has committed a violation of [the Espionage Act], at the very least, either as an aider, abettor and/or co-conspirator of Mr. Kim.”  And this is what is so chilling.

From what is publicly known, the government had not – since the passage of the Espionage Act in 1917 – ever alleged in a legal document that a journalist violated the Act – until now.  Apparently, the closest the government ever came to making such an allegation came during the George W. Bush administration.

In 2006, Attorney General Alberto Gonzales said on This Week, “There are some statutes on the book which, if you read the language carefully, would seem to indicate that [prosecuting journalists for disclosing classified information] is a possibility.”  The Administration never followed through on Gonzales’ Sunday morning musings.

The general understanding that reporters should not be prosecuted for or even alleged to be in violation of the Espionage Act was reflected in the Senate Judiciary Committee report on the PPA’s national security exception.

“The federal government has never employed a search warrant procedure [where a reporter possesses national security information] in large part because [it] present[s] a particularly sensitive policy problem,” the report reads.  “Press possession of governmental documents generally occurs when the press is critical of official policy or practice, and tensions are likely to be high.”

The report continues, “For the government to squelch such criticism by the forceful means of seizure, to which the press has no opportunity to object in advance, comes very close to forcing the issue of first amendment freedom versus the power of the government.  Broader search powers would be susceptible of abuse in chilling critical comment about the government.”

Due to these concerns, it was the Judiciary Committee’s intent that the national security exception to the PPA “would apply only if there was an allegation of an intent to injure the United States or give advantage to a foreign power.”  In other words, the Committee thought it was signing off on a law that required that the government not only show that a reporter violated the Espionage Act, but also show that the reporter intended to injure U.S. interests.

In an ironic twist of fate, the government official’s affidavit seeking the search warrant against Rosen cited that legislative history for the proposition that the PPA was only intended to protect “persons involved in First Amendment activities who are themselves not suspected of participation in the criminal activity for which the materials are sought.”  According to the government official, Rosen was not one of these innocent parties.

Less fatefully and likely more purposefully, the official did not direct the magistrate judge’s attention to the portion of legislative history that explained the intent requirement.  Most damningly, the government official never even alleged that Rosen intended to “injure the United States or give advantage to a foreign power.”

Instead, the government official wrote only, “The text of the June 2009 article reflects that the Reporter’s knowledge and understanding that the information the Reporter had received was intelligence information the disclosure of which could be harmful to the United States.”

“Knowledge and understanding” alone though – without an intent to injure – would not have been enough for the Senate Committee that shepherded the law through Congress. The official, therefore, failed to satisfy the government’s “heavy burden,” according to the Committee, to merit a finding of this “exceptional circumstance.”

“Knowledge and understanding” alone though – without an intent to injure – would not have been enough for the Senate Committee that shepherded the law through Congress.  The official, therefore, failed to satisfy the government’s “heavy burden,” according to the Committee, to merit a finding of this “exceptional circumstance.”

There are arguments to be made that the government’s actions in this case violated the First Amendment.  As I have explained elsewhere, the Supreme Court’s newsgathering jurisprudence “demonstrate[s] a state of affairs that has created a nearly impenetrable area of constitutional law that is nigh impossible to make any sense of.  Even more unfortunate, everyone knows that this is the case.”

This is not to say that constitutional concerns and arguments are not important; they are.  But, they are also much messier than statutory ones and also have a predilection for spurring endless and somewhat unproductive debates.

Taking the language of the PPA together with legislative history creates a much clearer picture of the government malfeasance in this case than looking through the constitutional lens.

The Senate believed – without objection from any House reports that this author is aware of – that it crafted a law requiring the government to show that a reporter intended to harm the United States or intended to benefit its enemies.  The government failed to do that here, and, therefore, the warrant should not have been granted and the government violated (albeit in good faith reliance on a warrant) the PPA.

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DOJ Takes Extraordinary Step in Seizing AP Phone Records

Posted on May 13, 2013 by

by Matthew L. Schafer

On Friday, the Associated Press’s General Counsel Laura Malone received a letter from the Department of Justice.  It informed the AP that the United States government had seized records related to twenty phone lines used by AP journalists and other employees.  The records, which included personal cellphone and home phone records, were gathered over a two month period.

According to the Washington Post, the telephone records were seized in connection with investigations into recent national security leaks by government employees.

In a letter sent Monday, the President and CEO of the AP, Gary Pruitt, called the government’s actions a “massive and unprecedented intrusion” into the newsgathering process.

“There can be no possible justification for such an overbroad collection of the telephone communications of The Associated Press and its reporters,”  Mr. Pruitt wrote.  “These records potentially reveal communications with confidential sources across all of the newsgathering activities undertaken by the AP during a two – month period, provide a road map to AP’s newsgathering operations, and disclose information about AP’s activities and operations that the government has no conceivable right to know.”

“There can be no possible justification for such an overbroad collection of the telephone communications of The Associated Press and its reporters,” Mr. Pruitt wrote.

In response to requests for comment, the DOJ told Business Insider, “We take seriously our obligations to follow all applicable laws, federal regulations, and Department of Justice policies when issuing subpoenas for phone records of media organizations.  . . .  Because we value the freedom of the press, we are always careful and deliberative in seeking to strike the right balance between the public interest in the free flow of information and the public interest in the fair and effective administration of our criminal laws.”

Mr. Pruitt is exactly right: the actions are unprecedented.  While it is impossible to know exactly how many times the government has taken similar actions, only a handful of cases of news organizations and reporters have ever been challenged in the courts.  This small number of cases making it to the courts is a testament to the normal restraint the government showed in the past when it sought material from reporters.

According to the Reporter’s Committee for the Freedom of the Press, the DOJ has only issued eighty-nine subpoenas, seeking the identities of reporters’ confidential sources, to reporters.

In a Freedom of Information Act request sent in January by Lippmann Would Roll to the U.S. Attorney General’s Office, the DOJ said that it only collected fifty-four subpoenas over the same twelve-year-period reported by the Reporter’s Committee. Surprisingly, even though the Attorney General must approve subpoena requests, the DOJ indicated in its letter to LWR that “The Office[] of the Attorney General . . . do[es] not maintain all media subpoena files.”

Currently, LWR has a FOIA request in to the DOJ’s Criminal Division, the division that most likely collected the AP’s telephone records.

The actions taken against the AP are especially disconcerting as, unlike targeted subpoenas seeking the name of a single confidential source, the DOJ’s collection of AP telephone records are, apparently, a blanket collection of all telephone records relating to the twenty phone lines, which include the phones of the AP’s bureaus in New York and Washington, D.C.

Whenever the DOJ seeks to subpoena a reporter to force him to identify his source or seeks the telephone records of reporters, it must follow an internal regulation, 28 C.F.R. § 50.10.  Although the internal regulation does not create a private cause of action by which reporters could sue the DOJ for violating its terms, it does place supposed internal limitations on actions that U.S. attorneys can take when seeking records from the news media.

When a U.S. attorney seeks telephone records in a criminal investigation, he must show that a crime has occurred and that the information isn’t otherwise available from other sources.

The attorney must also show that he entered into negotiations with the news organization in an attempt to reach an amicable result and provided “reasonable and timely notice of the determination of the Attorney General to authorize the subpoena and that the government intends to issue it,” unless such notification would “pose a clear and substantial threat to the integrity of the investigation.”

Finally, “[t]he subpoena should be as narrowly drawn as possible; it should be directed at relevant information regarding a limited subject matter and should cover a reasonably limited time period.”

(The form that the DOJ’s Tax Division uses for such requests was sent to LWR after a FOIA request earlier this year.)

In general and according to the DOJ’s regulation, “[T]he approach in every case must be to strike the proper balance between the public’s interest in the free dissemination of ideas and information and the public’s interest in effective law enforcement and the fair administration of justice.”

If the government failed to tailor its seizure of telephone records to those telephone lines relating to the leaks, which is likely as it apparently made no attempts to focus the investigation on a single reporter close to the leaks in question, it violated its own regulation.

Moreover, the government violated the regulation by failing to engage the AP in any negotiations, as it is completely unclear how negotiating with the AP in private would have damaged its leak investigation into a leak that had already occurred.

Unfortunately, that agreement, which stood inviolate for the majority of United States’ history, has now been violated – perhaps irreparably. The gravity of the situation cannot be overstated.

Finally, if the DOJ failed to subpoena non-press citizens potentially related to the leak before it went after the AP records, it violated the regulation’s requirement that it seek information from alternative sources before seeking the telephone records of a journalist.

In the event that a U.S. attorney did violate the regulation, he or she would be subject to “an administrative reprimand or other appropriate disciplinary action.”  This remedy is, admittedly, not that satisfactory.  Thus, it is necessary to look for other solutions to this abuse of power.

In 1978, the Reporters Committee, news organizations, and reporters brought a lawsuit against several telephone companies in an attempt to force those telephone companies to inform them whenever the government was seeking their telephone records.  The case went up to the U.S. Court of Appeals for the District of Columbia, which rejected the reporters’ First Amendment argument.

“The Government’s good faith inspection of defendant telephone companies’ toll call records does not infringe on plaintiffs’ First Amendment rights, because that Amendment guarantees no freedom from such investigation,” the court found.

The court went on to emphasize that “it is clear that Government access to defendants’ toll-call records in no sense ‘abridges’ plaintiffs’ news-gathering activities within the meaning of the First Amendment.  Not every Government action that affects, has an impact on, or indeed inhibits First Amendment activity constitutes the kind of ‘abridgment’ condemned by the First Amendment.”

Even though the D.C. Court of Appeals decided in favor of the government thirty-five years ago, in the intervening years some U.S. Courts of Appeals have found that reporter’s may be protected from such interferences in some instances.  These conflicting findings have  created a fragmented legal environment where some U.S. Courts of Appeals recognize strong First Amendment privileges for reporters and some don’t.  In short, the issue is unsettled and begs for the U.S. Supreme Court to revisit it.

In the U.S. Courts of Appeals that embrace strong First Amendment protections, there is a good argument that the DOJ’s actions would be unconstitutional.  These courts require that information collected be relevant to a criminal investigation.  When the DOJ gave up on the targeted seizure of telephone records of, for example, the reporter who initially reported on the leak, it failed to entertain any questions of the relevance and scope of the information it was gathering.

Of course, however, this story goes beyond the mere violations of internal regulations and Supreme Court jurisprudence to shake the very foundation of an long and implicit agreement between the government and the press.

The breadth of the seizure also raises questions as to whether the government essentially “‘annex[ed]‘ the news media as ‘an investigative arm of government.’”  The phrase has never been defined with any degree of specificity because the government has never undertaken such an effort to the degree it did with the AP.  In one famous case though, Justice Powell said that such a result would raise serious First Amendment questions.

Of course, however, this story goes beyond the mere violations of internal regulations and Supreme Court jurisprudence to shake the very foundation of an long and implicit agreement between the government and the press.  In the past, the government has respected the division between the press and itself, understanding that both parties rely on each other to fulfill their functions effectively.  Unfortunately, that agreement, which stood inviolate for the majority of United States’ history, has now been violated – perhaps irreparably.

The gravity of the situation cannot be overstated.  It is completely antithetical to the very theory of our democracy and a free press.  That theory is simple: for democracy to thrive, the press must be free to gather and disseminate news about the government to the citizenry without fear of reprisal or punishment.

As the Supreme Court said sixty-eight years ago in a case aptly captioned for the purposes of the present controversy, Associated Press v. United States, “The First Amendment rests on the assumption that the widest possible dissemination of information from diverse and antagonistic sources is essential to the welfare of the public, that a free press is a condition of a free society.”

For more coverage of subpoenas against journalists, please review these articles also available at LWR.

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Speak, and Speak Immediately: The Risen Subpoena, the Executive Branch, and the Reporter’s Privilege

Posted on May 2, 2013 by

by Matthew L. Schafer

I have finally finished my thesis, Speak, and Speak Immediately: The Risen Subpoena, the Executive Branch, and the Reporter’s Privilege.  I hope to write an abridged version shortly, but law school is currently demanding most of my attention – or most of my procrastination anyway.  In the meantime, you can read the abstract below or read the thesis here.

Abstract

In 1972, Branzburg v. Hayes required the Supreme Court to consider whether the First Amendment to the United States Constitution conferred on journalists a right to quash grand jury subpoenas issued by the government.  The Court held in a five-to-four opinion that it did not.  Yet, in 2011, a federal district judge found that James Risen, a New York Times reporter, had a First Amendment reporter’s privilege that protected him from having to reveal his source for a book chapter about a secretive CIA operation.  This judge is not alone in finding such a privilege in spite of Branzburg; indeed, many judges have come to the same conclusion.  

This thesis, through an analysis of post-Branzburg cases at the federal courts of appeals level, attempts to map the current landscape.  It finds that Branzburg jurisprudence is in tatters, with some courts of appeals finding a reporter’s privilege and others not.  It further finds that the courts that do find a privilege fail to weigh the First Amendment interests in each case, opting instead for sweeping but vacuous pronouncements of the benefits of the First Amendment.

Taking this landscape under consideration, this thesis suggests that Branzburg is the problem – not the solution and offers a way for courts to escape from under Branzburg’s thumb by recognizing that subsequent case law has implicitly dismissed the presumption on which Branzburg is based.  It further extrapolates from this subsequent case law the principle that the First Amendment is implicated when the government or a private party acts adversely to a speaker because of his speech.  Having recognized that the First Amendment is implicated by subpoenas against journalists, it then argues that the only way to account for all of the interests involved is to identify and appraise the value of the First Amendment interests in light of First Amendment theory and weigh those interests against the countervailing interests.  Finally, it suggests how this approach informs the Risen case.

Posted in First Amendment, Media Policy | Tagged , , , , , , | 2 Comments