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.
