A federal court will conduct a search of devices seized from a Washington Post reporter after a magistrate judge decided yesterday that the Department of Justice cannot be trusted to perform the search on its own.
US Magistrate Judge William Porter criticized government prosecutors for not including key information in a search warrant application. The court wasn’t aware of a 1980 law that limits searches and seizures of journalists’ work materials when it approved the warrant, Porter acknowledged.
The decision came six weeks after the FBI executed the search warrant at the Virginia home of reporter Hannah Natanson. Porter declined the Post and Natanson’s request to return the devices immediately but decided on a court-led process to ensure that the search is limited to materials that may aid a criminal case against an alleged leaker who was in contact with Natanson. He also rescinded the portion of the search warrant that authorized the government to open, access, review, or otherwise examine the seized data.
“The government acknowledges that it established probable cause to obtain only a small fraction of the material it seized,” Porter wrote in yesterday’s order. “Allowing the government to search through the entirety of a reporter’s work product—when probable cause exists for only a narrow subset—would authorize an unlawful general warrant.”
Porter’s ruling said the government’s proposed search would also violate the Department of Justice’s own guidelines that search warrants directed at the press must be narrowly drawn and that searches of materials must be designed to minimize intrusion into newsgathering activities and materials that are unrelated to the investigation. Keyword searches can be used to limit the intrusion, but Porter rejected the government’s request to use its own “filter team” to conduct the search.
“Given the documented reporting on government leak investigations and the government’s well-chronicled efforts to stop them, 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,” Porter wrote.