FBI Hoovered Up Two Years Of A Journalist's Phone And Email Records To Hunt Down A Leaker

from the sorry,-citizens,-we-have-an-omelette-to-make dept

The New York Times reports the FBI has crossed a line it's generally hesitant to cross. An investigation into classified info leaks by a Senate Intelligence Committee aide involved the seizure of two year's worth of a New York Times reporter's phone and email records.

The former aide, James A. Wolfe, 57, was charged with lying repeatedly to investigators about his contacts with three reporters. According to the authorities, Mr. Wolfe made false statements to the F.B.I. about providing two of them with sensitive information related to the committee’s work. He denied to investigators that he ever gave classified material to journalists, the indictment said. [...] Mr. Wolfe’s case led to the first known instance of the Justice Department going after a reporter’s data under President Trump. The seizure was disclosed in a letter to the Times reporter, Ali Watkins, who had been in a three-year relationship with Mr. Wolfe. The seizure suggested that prosecutors under the Trump administration will continue the aggressive tactics employed under President Barack Obama.

The war on unofficial transparency continues -- this time ensnaring a reporter. The indictment [PDF] shows Wolfe was in regular contact with four unnamed reporters and the classified info leaked apparently related to the investigation of Carter Page. (The indictment refers only to MALE-1.).

Despite all the dots connected by the Justice Dept. after hoovering up email and phone records of four reporters, none of the charges brought against Wolfe involved mishandling classified info. All three charges listed are for lying to the FBI, not exposing secret info. While the info obtained may have been necessary to prove Wolfe lied to investigators, it does seem like a serious breach first amendment boundaries for nothing but vanilla "lied to the feds" charges. Those charges are mostly there for the government to punish people when it thinks it can't nail down more serious charges.

And it is a breach of expected norms, if not a reliable indicator of how many civil liberties the government is willing to doormat to hunt down leakers and whistleblowers.

Under Justice Department regulations, investigators must clear additional hurdles before they can seek business records that could reveal a reporter’s confidential sources, such as phone and email records. In particular, the rules require the government to have “made all reasonable attempts to obtain the information from alternative, non-media sources” before investigators may target a reporter’s information. In addition, the rules generally require the Justice Department to notify reporters first to allow them to negotiate over the scope of their demand for information and potentially challenge it in court. The rules permit the attorney general to make an exception to that practice if he “determines that, for compelling reasons, such negotiations would pose a clear and substantial threat to the integrity of the investigation, risk grave harm to national security, or present an imminent risk of death or serious bodily harm.”

It's not clear all these steps were followed. But there are a whole lot of exceptions available to the FBI to bypass these steps meant to protect the First Amendment. No one seems to have been notified beforehand, and it was far more than call/email metadata that was obtained. The indictment cites the content of encrypted messages -- suggesting yet another area where the FBI's "going dark" rhetoric is overblown.

After the story was published, WOLFE congratulated REPORTER #3, using Signal, stating "Good job!" and "I'm glad you got the scoop." REPORTER #3 wrote back, using Signal,"Thank you. [MALE-l] isn't pleased, but wouldn't deny that the subpoena was served."

Going after reporters' records may become standard operating procedure. The Obama Administration prosecuted more leakers and whistleblowers than all previous presidents combined. This administration appears ready to dwarf Obama's numbers.

Attorney General Jeff Sessions said last year that the Justice Department was pursuing about three times as many leak investigations as were open at the end of the Obama administration.

If the DOJ isn't going to give the First Amendment a wide berth, it's not going to be much friendlier to the rest of them -- like the Fourth. Aggressive pursuit of leakers -- and the attendant collection of reporters' communications/data -- will continue. The DOJ may have guidelines meant to limit investigators from obtaining journalists' records, but they're not much practical use when they can be waived to preserve the "integrity of the investigation."

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Filed Under: 4th amendment, doj, fbi, first amendment, investigations, james wolfe, jeff sessions, journalists, leaks, whistleblowers