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Leak Investigation of Fox News' James Rosen Crosses Red Line by Seizing Contents of Emails, not Just Data

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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. Stranford 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 possible 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.
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Peter Scheer, a lawyer and writer, is executive director of the First Amendment Coalition, a nonprofit dedicated to free speech and government transparency. The views stated here are his only, and do not necessarily reflect the opinions of the FAC Board of Directors or Advisors.