![]() ![]() District Court for the Southern District of New York sent Reason a grand jury subpoena demanding personal information of six people who had left hyperbolic comments about the judge presiding over the controversial federal conviction and sentencing of Silk Road founder Ross Ulbricht. We were then especially conscious of the practice because it had just happened to us. As Nick Gillespie and I wrote six years ago, "From press accounts of similar actions at other news publications and social media sites, we know that it is increasingly common for the federal government to demand user information from publications and websites while also stifling their speech rights with gag orders and letters requesting 'voluntary' confidentiality." That is likely because the law and existing DOJ regulations establish (at least on paper) a very high bar for such an order to be issued directly against a media organization." "However, in the 20 years I have been at CNN, we have never been subject to one. ![]() "I was aware that such secret orders were used by DOJ on matters of national security," he writes. The CNN general counsel seems to think such doubly punitive measures-the seizure, and the stifle-are rare in the journalism and communications world. Indeed, one of the only judges to lay eyes on the DOJ's reasoning for harassing CNN concluded that it was based on "speculative predictions, assumptions, and scenarios unanchored in any facts."Ĭommented CNN's Vigilante: "This was the first characterization of the evidence we had seen, and it was stunning: After months of secret proceedings and heavy-handed enforcement tactics, a neutral judge said that, in large part, the emperor had no clothes." The process in some ways is similar to how federal investigators can secretly obtain communications under the Foreign Intelligence Surveillance Act through the FISA Court.Īs with the FISA Court, the secrecy of these proceedings is an excellent tell that the underlying legal justifications for bulldozing Fourth Amendment protections against unreasonable government search and seizure are quite poor. "But it is entirely and solely within DOJ's discretion to seek issuance of a subpoena." "On paper, DOJ established these guidelines and levels of approval that appear fairly stringent," CNN Senior Legal Analyst Elie Honig said. "These things are routinely filed under seal and kept under seal and maintained under seal indefinitely." ĭOJ policy also allows prosecutors to obtain journalists' communications without their knowledge through the courts-if the attorney general signs off and the Justice Department determines the case falls under "extraordinary measures," such as harm to national security, and after all other reasonable attempts have been made to obtain the information elsewhere. From our perspective it impacts reporter source privilege and the protections for the reporter," said Katie Townsend, legal director at the Reporters Committee for Freedom of the Press. ![]() "The level of secrecy is something we've been very focused on for years. Under DOJ regulations, the department can secretly obtain journalists' records through a court order, without the journalists knowing. In doing so, former President Donald Trump's DOJ prosecutors followed the rules and legal justifications established by their predecessors in the Obama administration, which prosecuted more leakers than every prior presidency combined, even charging Fox News White House chief James Rosen as "at the very least, either…an aider, abettor, and/or co-conspirator."Ī CNN piece last month laid out the chilling and expansive framework for secret government seizures: The Trump administration launched a crackdown in 2017 against national security-related leaks, an effort that led to the secret seizure of three Washington Post reporters' phone records, which was revealed only last month. (Starr herself was not the target of the investigation, the feds confirmed to reporters.) The Justice Department under Attorney General William Barr had been requesting email header data and phone logs of Starr, a Pentagon reporter, dating from June 1 to July 31 of 2017, for reasons that are still unknown to any third parties aside from some federal judges operating a secret court. "Since July 17, 2020," Vigilante wrote, "I have been bound by a gag order or a sealing order that prohibited me from discussing, or even acknowledging, that the government was seeking to compel the disclosure of the professional email communications of CNN reporter Barbara Starr." On Wednesday, CNN Executive Vice President and General Counsel David Vigilante made a revelation sure to startle those unaware of the state's vast power to not just seize information from journalists but bully their employers into silence about it under penalty of jail time. ![]()
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