Justice Department Actions Draw Ire of Free Speech Advocates



by Peter Scheer

The Justice Department has been getting hammered in (and by) the press over a leak investigation involving the seizure of emails from the personal gmail account of James Rosen, a reporter for Fox News. The criticism has focused on the revelation, contained in a 2010 FBI affidavit used to obtain a search warrant, that the government then viewed Rosen not merely as a witness, someone who possessed evidence about the source of a national security leak, but as an indictable law-breaker.

Rosen’s source, according to the affidavit, was a government contractor who allegedly gave Rosen classified information about North Korea’s nuclear program. The Fox reporter’s crime: soliciting the information (aka doing his job as a journalist). The FBI affidavit claimed that, by aggressively soliciting a leak of classified information, Rosen had “aided, abetted or conspired” with his source in violating the “Unauthorized Disclosure of National Defense Information” statute (18 USC section 793).

While worrisome, to be sure, the government’s characterization of Rosen’s actions is not quite the declaration of war against the news media that it first appears-for reasons I’ll discuss in a minute. Nonetheless, the leak investigation of Rosen, as detailed in the FBI affidavit, does represent the crossing of another red line: the government’s pursuit and seizure of the contents of email messages to and from a journalist.

This contrasts with the Associated Press investigation, in which the Justice Department, investigating a 2012 leak of classified information about a foiled al Qaeda plot to down a commercial airliner, obtained phone calling records for multiple AP reporters and office phone lines. But the forced access by government to calling records- showing phone numbers of call participants, dates and duration of calls, etc.-is much less invasive and intrusive than the forced access by government to the actual content of communications.

Phone account metadata, after all, is routinely available to thousands of employees of your phone company or cell service provider. The contents of those phone calls are not. Law enforcement access to the complete messages in journalists’ emails is the equivalent, in my view, of a wiretap on a journalist’s phones, allowing government to overhear and capture complete conversations. Which is to say, it’s a very, very big deal.

We take for granted a loss of privacy for all manner of data generated by our connection to, and use of, the internet. Google, t-mobile and Visa, collectively, know far more about my comings and goings, friends and acquaintances, preferences and purchases, than my wife does. More than I do, for that matter. Given how much control over “my information” I have already lost, the effect of government access to a subset of this same data is, for the most part, incremental.

But government’s access, on a secret basis, to the content of my communications, whether telephonic or digital-that is a difference in kind that is exponentially more “chilling” of my first amendment right to engage freely in communications with other individuals (who are themselves subject to the same constitutional protections). The implications for freedom of expression are magnified further when the email messages seized by prosecutors belong to a professional journalist.

Back to the leak investigation involving Fox News’ Rosen . . . .

Although the FBI affidavit seems to criminalize investigative journalism (in the national security arena, at any rate), a closer look suggests the government included these allegations not to set the stage for prosecuting Rosen, but, rather, to satisfy the requirements of the First Amendment Privacy Protection Act (42 USC section 2000aa & b). That law effectively forbids search warrants for “materials” belonging to journalists except when “there is probable cause to believe” that the journalist “has committed . . . the criminal offense to which the materials relate.”

Non-journalists are generally subject to warrant-based searches by police for evidence of a crime, even though they are not suspected of criminal activities themselves. They are “third-party witnesses” subject to search merely because they have, or are believed to have, evidence that incriminates someone else: the target of the investigation. The Supreme Court in 1978 rejected the argument that the first amendment requires a carve-out for reporters. Zurcher v. Stanford Daily. The Privacy Protection Act was enacted to reverse the outcome in Zurcher, barring third-party search warrants for journalists’ records, while preserving a narrow exception for investigations involving  crimes by journalists.

The FBI’s allegations against Rosen apparently were made to qualify for this exception. This is a defensible tactic when you realize that the government often refrains from charging persons whom it deems chargeable in a criminal investigation. Recall the “unindicted co-conspirators” in the Watergate prosecutions.

On the other hand, interpreting criminal statutes so broadly that they reach journalists’ soliciting of information runs the risk of nullifying the Privacy Protection Act altogether. The Rosen case makes clear that that risk is very real indeed.

Reprinted by permission.  Peter Scheer, a lawyer and writer, is executive director of the First Amendment Coalition. The views stated here are his only, and do not necessarily reflect the opinions of the FAC Board of Directors or Board of Advisors.


About The Author

David Greenwald is the founder, editor, and executive director of the Davis Vanguard. He founded the Vanguard in 2006. David Greenwald moved to Davis in 1996 to attend Graduate School at UC Davis in Political Science. He lives in South Davis with his wife Cecilia Escamilla Greenwald and three children.

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22 thoughts on “Justice Department Actions Draw Ire of Free Speech Advocates”

  1. Growth Izzue

    The head of the IRS has visited the Obama White House 157 times. He has visited more often then even Obama’s cabinet members. In comparison, the head of the IRS visited the Bush White House only once. Now how can anyone honestly believe that the Obama White House isn’t involved in the current IRS scandal?

  2. Davis Progressive

    this isn’t the mainstream media, it’s a first amendment advocacy group (i have to laugh at your characterization here). this is not corruption. it’s government encroachment into the private domain. i don’t see any evidence this is a corrupt administration. what i see, is an administration that has taken bush policies and made them their own.

  3. Davis Progressive

    on the irs which appears to be afield from this article, you seem to imply that the visits were improper but you never cite when they occurred or the topic off conversation. 157? how’s that even possible. are you citing a real source or some right wing blog?

  4. Davis Progressive

    my last comment:

    [quote]More than 50 of Douglas Shulman’s scheduled visits are described as “health care meetings” or “health care reform meetings,” according to the visitor logs. Arrival times are only listed for 11 of his visits. The majority were set to be held in the Eisenhower Executive Office Building, which houses office suites for administration aides.

    The IRS, which has come under fire for its admitted targeting of conservative groups applying to become tax exempt, is responsible for enforcing many of the new rules associated with Obamacare, which was signed into law on March 23, 2010.[/quote]

    seems like a plausible explanation, but it certainly doesn’t stop the echo chamber from leaping out of a building in hopes of finding a nefarious conclusion.

  5. Growth Izzue

    [quote]this isn’t the mainstream media, it’s a first amendment advocacy group (i have to laugh at your characterization here).[/quote]

    I’m talking about mainstream media in general, not specific to this article. Finally the press is digging into this administration’s corruption.

  6. Davis Progressive

    you obviously did not read my comment very carefully. i stated that the obama administration took the bush policies and made them their own. in other words, you stated the same thing i did when you said, “obama owns it now.” What do you think “made them their own” means?

  7. Growth Izzue

    “This was not the work of two rogue agents in Cincinnati. Instead, it suggests a level of coordination and animus that goes above the IRS’ Cincinnati office and even above IRS Commissioner Douglas Shulman.

    He’s the one we now know visited the White House at least 157 times during the Obama administration, thanks to a Daily Caller analysis of White House public “visitor access records.” Those are more recorded visits than even the president’s Cabinet members.

    We are asked to believe that these visits, which included one Easter Egg roll, were merely to discuss the IRS’ role in enforcing ObamaCare with fees, taxes and penalties — a frightening-enough prospect — and that discussion of the IRS’ targeting of the Tea Party and letters from 132 members of Congress complaining about the abuse of federal power never came up.”

    Read More At Investor’s Business Daily: http://news.investors.com/ibd-editorials/053013-658240-irs-commissioner-shulman-visited-white-house-157-times.htm#ixzz2UtEwXGyG

  8. Davis Progressive

    i don’t care if i get banned, but you’re an idiot who is unable to comprehend basic english. for the fifteenth time, i’m not blaming bush, i’m stating that my disappointment in obama is his failure to dismantle bush’s programs. there is a big freaking difference, but you’re either too dumb or too partisan to get that through your thick skull.

  9. Growth Izzue

    You might be able to say that Bush’s policies are being continued by Obama when you refer to things like Gitmo or Afganinstan. But to say that ussint the IRS and the DOJ to go after conservatives and reporters are because of Bush’s policies is really stretching it.

  10. Iggee

    Ok so I don’t understand. Why is this an infringement on freedom of speech? Didn’t the FBI get a warrant? (unlike the Bush administration…) And how does a government agency (theoretically) obtaining my confidential emails, via search warrant, mean that my 1st Amendment rights are any less than before they accessed my emails? I am not prevented from using email, or indeed of publicly expressing my opinion, esp if I am a journalist, about the accessing of said emails. Am I missing something here?

  11. Growth Izzue

    Iggee, I guess your okay with the gov’t listening in on your phone calls too. You still get to make calls, you’re not stopped from doing so. How about if the gov’t follows you everywhere you go? You can still go where you want, nobody is stopping you.

  12. Iggee

    I’m not arguing that I want someone to listen in or access my private communication. I asked how this infringed on my 1st amendment rights, as the article above indicated. I believe it may well infringe on a right to privacy, right to unlawful search and seizure (except in this case it doesn’t as there was in fact a search warrant), but I do not see, and your reply supports my argument, a case for infringement of free speech.

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