Labeling Reporters “Criminals,” or Just Complying With the Privacy Protection Act?

There has been a lot of outrage expressed recently over the contents of an affidavit filed in support of a search warrant to search the e-mail accounts of reporter James Rosen. The government’s affidavit offered the view that Rosen violated the law by aiding and abetting the alleged violations of laws prohibiting the disclosure of classified national security information. Specifically, the affidavit stated, “there is probable cause to believe that the Reporter . . . has committed a violation of 18 U.S.C. 793(d) either as Mr. Kim’s co-conspirator and/or aider and abetter.” To some, the fact that the government would make this argument shows that the Obama Administration is engaging in a War on Journalism. According to this thinking, the Obama Administration is not only trampling on the rights of a free press by going after its sources. Incredibly, they even think of a reporter as a criminal — and are willing to say so in court.

I think you get a different sense of this affidavit if you understand the privacy laws, however, and in particular a federal law called the Privacy Protection Act, 42 U.S.C. 2000aa. It’s a pretty complicated law, so it will take me a minute to explain. But I think I can explain why the affidavit filed in the Rosen search had this language, and why claims that this language reveals a “war on journalism” are based on a misunderstanding.

Here’s the background. The Privacy Protection Act was a response to a Supreme Court decision called Zurcher v. Stanford Daily, 436 U.S. 547 (1978). In Zurcher, the Supreme Court held that the Fourth Amendment permits the government to execute a search warrant at a newspaper to recover evidence of a crime that reporters had gathered in the course of investigating the news. The Supreme Court reasoned that warrants can be issued when there is probable cause to believe evidence of a crime is located in the place to be searched, and there is no Fourth Amendment principle that third-parties are exempt from such searches.

You can see the major problem created by Zurcher. If the government is allowed to execute warrants wherever the evidence is, and reporters often have to gather evidence of crime in the course of gathering news, then the government can get lazy and just raid reporters’ homes and offices to find out what the reporters have learned rather than conduct the government’s own investigation.

That problem hadn’t arisen historically because the Supreme Court had earlier adopted the “mere evidence” rule, by which the government was prohibited from obtaining warrants to collect mere evidence; the government only had the power to collect contraband, stolen goods, or the fruits of crime, which necessarily excluded searches of the offices of reporters for evidence of crime. But the Supreme Court had overturned the mere evidence rule in 1967 in Warden v. Hayden, setting up the question in Zurcher eleven years later. So the combination of Hayden and Zurcher meant that the Fourth Amendment allowed the government to target innocent reporters who just happened to to have gathered evidence of crime in the course of gathering the news.

Congress enacted the Privacy Protection Act just two years after Zurcher. The Privacy Protection Act is pretty complicated, and its exceptions have exceptions to its exceptions. But it contains pretty specific guidance for when the government can conduct searches to gather evidence from reporters made in the course of gathering the news in cases involving the disclosure of classified information. The rule is that the government can only do that when “there is probable cause to believe that the person possessing such materials has committed or is committing the criminal offense to which the materials relate.” 42 U.S.C. 2000aa(a). The idea is that the government can’t gather evidence from journalists who happen to have evidence of that crime in their possession except in the rare cases in which there is probable cause to believe that the journalist is involved in the crime, too. In other words, investigators generally can’t take the short-cut of going to the press for the evidence — but when there is probable cause that the press is involved in the crime, the usual Fourth Amendment rules apply.

That brings us to the affidavit filed in the Rosen case. If you read the affidavit, it is pretty clear that the part discussing Rosen’s own potential criminality is designed to show compliance with the Privacy Protection Act. Here’s paragraph 46, the key paragraph that has caused so much concern:

Based on the above, there is probable cause to believe that the Reporter (along with Mr. Kim) has committed a violation of 18 U.S.C. 793(d) either as Mr. Kim’s co-conspirator and/or aider and abetter, and that the evidence of crime is likely to be contained in the [ ]@gmail.com account. Accordingly, the FBI’s request to search the contents of that account falls squarely within section 2000aa(a)’s exception permitting searches of media-related work product materials, even when possessed by a national news reporter because there is “probable cause to believe that the person possessing such materials has committed or is committing the criminal offense to which the materials relate.” 42 U.S.C. 2000aa(a).

The first sentence in that paragraph has caused a lot of anxiety among reporters. But the first sentence is just the set-up for the second sentence, in which the affidavit explains that this matters because it triggers the exception under the Privacy Protection Act. (For a discussion of the underlying criminal law, and in particular the interesting question of whether the laws on disclosing national security information can apply to reporters under the First Amendment, see this excellent post by Eugene.)

I am only making a narrow point, I should stress. I am not arguing that investigators made a good decision when it obtained Rosen’s e-mail. I am not expressing a view about whether the Privacy Protection Act’s exception is too broad, or what the law or policy of criminal investigations involving the media should be. My point is just that the controversial language in the affidavit shouldn’t be read out of context. That language was necessary to demonstrate compliance with a privacy law Congress enacted to provide safeguards for the press.

UPDATE: I tried to stress the narrowness of the post, but it seems I have failed. Let me try again. Different people have voiced different objections to the investigation of Rosen’s e-mails. Some have argued that the investigation is wrong because the government should not obtain evidence from journalists — or at least e-mails — at all. Others have argued that the affidavit is troubling because it reveals DOJ’s apparent view about substantive law that a journalist who asks a source to disclose classified information with the goal of publishing it has committed a federal crime.

This post is responding to a different argument: That the fact of labeling a journalist a criminal in a court filing demonstrates an effort to intimidate the press and further a “war on journalism” by treating journalists like criminals. See, for example, this CBS News story today from Jan Crawford. The argument I’m responding to (as seen in Crawford’s piece) is that labeling a journalist a criminal reflects a hidden motive to intimidate reporters. My sense is that an awareness of the relevant law puts a different perspective on the language, as the motives behind developing a point in an affidavit that is required under the law may be different from developing a point gratuitously when it is not required by law. When a point required by law is developed in an affidavit, it may have been added with the relatively simple motive of complying with the law.