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if you want to understand how little the current governance cares about the First Amendment, look no further than a pre-dawn FBI raid on a journalist’s home-conducted in apparent violation of a federal law specifically designed to prevent exactly this kind of thing.
Last week,FBI agents showed up at the home of Washington Post reporter Hannah Natanson,seized two phones,two laptops,a Garmin watch,a portable hard drive,and a recording device. Natanson has spent the past year covering the Trump administration’s efforts to gut the federal workforce.She is not accused of any crime. she is not the target of any inquiry. The FBI told her as much when they were busy carting away basically all of her devices.
The raid was ostensibly connected to an investigation into Aurelio Perez-lugones, a government contractor with top-secret clearance who was arrested and charged with illegally retaining classified documents-not leaking them. Again, because this seems to have gotten lost in much of the coverage: Perez-Lugones hasn’t been charged with leaking anything to anyone. Just retaining documents. The government isn’t even alleging-at least not yet-that he gave anything to Natanson or any other journalist. But the DOJ apparently decided that the best way to investigate this guy was to ransack a journalist’s home and vacuum up everything she’s ever worked on.
There’s a law that’s supposed to prevent this. It’s called the Privacy Protection Act of 1980, and it was passed specifically because Congress recognized that letting law enforcement raid journalists to fish for evidence of other people’s crimes has a catastrophic chilling effect on the press.The law bars searches and seizures of journalists’ work product when the journalist isn’t suspected of a crime,with very narrow exceptions that don’t appear to apply here.
Yes, some will argue the government has legitimate interests in protecting classified information-but that interest doesn’t override the Constitution, and it certainly doesn’t justify ignoring a federal statute specifically designed to prevent exactly this kind of fishing expedition.
As the Freedom of the Press Foundation put it:
“This is an alarming escalation in the Trump administration’s multipronged war on press freedom. The Department of Justice (and the judge who approved this outrageous warrant) is either ignoring or distorting the Privacy Protection Act, which bars law enforcement from raiding newsrooms and reporters to search for evidence of alleged crimes by others, with very few inapplicable exceptions.
Beyond the PPA, even the DOJ’s own internal guidelines-which Attorney General Pam Bondi already weakened from their Biden-era form back in April based on an outright lie-are supposed to treat searching a journalist
the Justice Department’s seizure of reporter devices, stemming from an investigation into leaks regarding classified documents, has raised important concerns about press freedom and the submission of the Privacy Protection Act. A court decision expected on February 6th will determine whether the devices will be returned and whether the DOJ will be held accountable for potentially violating protections for journalists.
The Department of Justice Investigation
Table of Contents
The Department of Justice is investigating leaks of classified national defense information. The investigation centers on individuals suspected of improperly disclosing classified documents to journalists. As part of this investigation, the DOJ obtained search warrants and seized the electronic devices of several reporters.
On November 2, 2023, the DOJ revealed it had charged Joshua Schulte with leaking classified information to the media. The New York Times reported that Schulte was accused of providing classified documents to multiple news organizations.
The Privacy Protection Act of 1980
The Privacy Protection Act of 1980 is a United States federal law designed to protect journalists from compelled disclosure of confidential sources. The Act generally prohibits the government from using subpoena power to force journalists to reveal their sources unless certain conditions are met, such as demonstrating a compelling need for the information and exhausting all other reasonable sources.
specifically, 42 U.S.C. § 2071 outlines the protections afforded to journalists under the Act.It requires the government to meet a high legal standard before compelling a journalist to testify or disclose information.
Legal Challenges and Court Proceedings
Media organizations challenged the DOJ’s seizure of reporter devices, arguing that it violated the Privacy Protection Act and the First Amendment. They sought a court order requiring the DOJ to return the devices and to refrain from similar actions in the future.
The case is New York Times Co. v. Garland, 23-cv-06338 (S.D.N.Y.). On January 25, 2024, Judge Ronnie Abrams heard arguments regarding the return of the seized devices. Reuters reported that the judge indicated she would rule on the matter by February 6th.
Implications for Press Freedom
The DOJ’s actions and the pending court decision have significant implications for press freedom. A ruling in favor of the DOJ could embolden the government to more aggressively pursue journalists in leak investigations, potentially chilling the reporting of sensitive information.
The Electronic Frontier Foundation (EFF) argues that the DOJ is attempting to circumvent the Privacy protection Act by focusing on the seizure of devices rather than directly compelling reporters to reveal their sources. This approach, the EFF contends, still has a chilling effect on journalistic activity.
