A federal judge has blocked the Justice Department from searching through a Washington Post reporter’s electronic devices after they were seized by the FBI last month, instead ruling that the court would conduct a search.
The FBI seized reporter Hannah Natanson’s phone, laptops, Garmin watch, and portable hard drives as part of an investigation into a government contractor who was later indicted for allegedly disseminating classified material. The move was highly unusual, and drew steep criticism and alarm from press groups. Attorney General Pam Bondi said it was aimed at catching a perpetrator of “illegal leaks” that “pose a grave risk to our Nation’s national security.”
The Post had asked the court to return Natanson’s property and put any copies under seal, arguing a search could violate her First Amendment rights. The government, meanwhile, has argued that filter teams, or separate groups of Justice Department lawyers, could go through Natanson’s devices and find any information relevant to the government’s investigation.
But in a Tuesday night opinion, U.S. Magistrate Judge William Porter of Virginia rejected the government’s push to conduct a search, instead deciding that the court “will conduct an independent judicial review of the seized materials.”
Porter wrote that “allowing the government’s filter team to search a reporter’s work product — most of which consists of unrelated information from confidential sources — is the equivalent of leaving the government’s fox in charge of the Washington Post’s henhouse.”
He continued: “The concern that a filter team may err by neglect, by malice, or by honest difference of opinion is heightened where its institutional interests are so directly at odds with the press freedom values at stake.”
Porter said the government must return to Natanson all materials “outside the limited information authorized by the search warrant.”
However, Porter denied a motion from The Washington Post that sought to return Natanson’s devices to her and the company. The judge said he “takes seriously … that this case involves top secret national security information,” and that classified information may need to be protected before Natanson’s materials are returned to her.
“No easy remedy exists here,” the magistrate judge wrote, noting that the FBI’s search of Natanson had the effect of “terminating her access to the confidential sources she developed and to all the tools she needs as a working journalist.”
“The government’s proposed remedy—that she simply buy a new phone and laptop, set up new accounts, and start from scratch—is unjust and unreasonable,” Porter added. “The Court’s genuine hope is that this search was conducted—as the government contends—to gather evidence of a crime in a single case, not to collect information about confidential sources from a reporter who has published articles critical of the administration.”
Porter also criticized the government for failing to mention a federal privacy law surrounding seizure of reporters’ materials, the Privacy Protection Act of 1980, in its search warrant application. That law restricts the government’s ability to seize reporters’ work product when they aren’t the ones being investigated for a crime.
The magistrate said the government’s omission “has seriously undermined the Court’s confidence in the government’s disclosures in this proceeding.”
Porter’s decision came four days after attorneys representing the Post and Natanson squared off against the Justice Department in court.
The Post and Natanson have argued the seizure of the reporter’s devices could violate the First Amendment’s press freedom protections by making it difficult for her to do her job and endangering her confidential sources.
Simon Latcovich, an attorney from Williams and Connolly representing the Post, said Friday that “the Government here seized the newsroom” during its search of Natanson’s Virginia home.
“It’s not about one reporter or one newsroom, it’s about all confidential government sources,” he later added.
The Justice Department has argued that the search executed at her home was legal and warranted to investigate a serious leak of highly sensitive information, writing in a court filing that the First Amendment isn’t “a journalist’s exception to search warrants.”
The department has also argued that it had proper systems in place to review Natanson’s devices and separate out privileged materials.
Gabe Rottman, vice president of policy at the Reporters Committee for Freedom of the Press, a nonprofit legal group that provides resources to reporters, said Tuesday that the court made the “right call – and the constitutionally appropriate one – by taking it upon itself to review the material and in ordering that information unrelated to the underlying investigation will be returned to Natanson.”