Washington Post

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 He also rescinded the portion of the search warrant that authorized the government to open, access, review, or otherwise examine the seized data.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.

Rejecting what he called an “unsupervised, wholesale search of all Movants’ seized data,” Porter said the court will develop a process for the search in consultation with the parties involved in the case.

US prosecuting alleged leaker

The US is seeking information for its prosecution of Aurelio Perez-Lugones, a government contractor accused of leaking classified information to Natanson. Porter wrote that the court will conduct the search to “gather the information the government needs to prosecute its criminal case without authorizing an unrestrained search and violating Movants’ First Amendment and attorney-client privileges.”

Porter, who presides in US District Court for the Eastern District of Virginia, said that a 4th Circuit appeals court precedent mandates this result. The US could appeal Porter’s ruling to that court.

On January 21, Porter ordered the government to stop its search of Natanson’s devices until further decisions from the court. That standstill order will remain in effect while the court conducts its review of the seized materials. Porter denied the Post and Natanson’s motion to return seized materials without prejudice and said that issue will be taken up in future proceedings.

The government started searching devices before the standstill order and was able to access Natanson’s work MacBook Pro by compelling her to unlock it with her fingerprint. But the government said it was unable to access data from the iPhone because it was protected by Apple’s Lockdown Mode. Natanson has said she uses encrypted Signal chats to communicate with sources and that her list of contacts exceeds 1,100 current and former government employees.

Porter’s ruling recounted the events leading to the government search of Natanson’s home. He said the government’s search warrant application should have discussed limitations imposed by the Privacy Protection Act (PPA) of 1980.

Porter said magistrate judges give the government some leeway in their role “as probable cause gatekeepers for search warrants,” given the “fast-paced environment” in which the requests are processed. The Natanson search warrant was one of 46 requested by the government that week.

Court admits “gap” in its analysis

Porter admitted that he was unaware of the PPA’s existence at the time he approved the warrant application:

As the judge who found probable cause and approved the search warrant, the Court acknowledges that it did not independently identify the PPA when reviewing the warrant application. As far as this Court knows, courts have approved search warrants directed at members of the press in only a handful of instances. This Court had never received such an application and, at the time it approved the warrant, was unaware of the PPA. This Court’s review was limited to probable cause, and the Court accepts that gap in its own analysis.

Porter went on to say that “the government’s failure to identify the PPA as applicable to a request for a search warrant on a member of the press—and to analyze it in its warrant application… has seriously undermined the Court’s confidence in the government’s disclosures in this proceeding.”

The PPA, he wrote, generally prohibits government officers “from searching for or seizing ‘work product materials’ or ‘documentary materials’ possessed by a person ‘reasonably believed to have a purpose to disseminate to the public a newspaper, book, broadcast, or other similar form of public communication.’” There are exceptions allowing search warrants when a reporter is suspected of a crime, when a seizure is needed to prevent death or serious injury, or when there is reason to believe that issuing a subpoena would result in the destruction of documents.

A Washington Post article said that Porter “scolded prosecutors about this omission at a hearing on the search warrant in an Alexandria courthouse Friday.” Prosecutor Gordon Kromberg reportedly responded that he didn’t mention the law in the application because he didn’t believe it applied to the case.

Porter’s ruling said that if the government had mentioned the law in its application, “the Court may well have rejected the search warrant application and directed the government to proceed by subpoena instead. At the very least, it would have asked more questions. The government deprived the Court of the opportunity to make those real-time decisions.”

Judge should have gone further, press group says

Even without being aware of the PPA, the court did not approve the Natanson warrant right away. Porter’s order said the court rejected the government’s first two requests for a search warrant because they were too broad. The court was “concerned about both the scope of the proposed search warrant and the government’s apparent attempt to collect information about Ms. Natanson’s confidential sources,” he wrote.

The search warrant ultimately approved by the court was limited to information that Natanson received from Aurelio Luis Perez-Lugones and information related to Perez-Lugones that could be evidence in the case against him.

“The government expressly alleged that Ms. Natanson received classified information from Mr. Perez-Lugones,” but its search warrant application did not say whether Natanson herself was a target of the criminal investigation, Porter wrote. “The Court learned that Ms. Natanson was not a focus of the investigation only through press reports published the day the warrant was executed,” he wrote.

Porter said the court has to take seriously the government’s claim that the case “involves top secret national security information,” even though the court doesn’t know whether disclosure of the information would cause harm. “The Court takes the government at its word, while acknowledging the well-documented concern that the government has at times overclassified information to avoid embarrassing disclosures rather than to protect genuine secrets,” he wrote.

The Freedom of the Press Foundation said that “Judge Porter was right to treat the seizure as a prior restraint and to limit the government from fishing through the irrelevant data it seized to snoop on reporters,” and right to reprimand prosecutors for the omission in their search warrant application. But the order didn’t go far enough, the foundation said.

“Judge Porter should have required all of Natanson’s materials seized pursuant to the deceptive warrant application to be returned to her,” the group said. “And he should not have credited the administration’s claims that any of the seized materials posed a national security threat without strict proof—as Judge Porter acknowledged, this administration, even more so than others, has a long track record of falsely claiming national security threats to protect itself from embarrassment and further its political agenda. It has earned zero deference from the judiciary on claims of national security threats, particularly when press freedom is at stake.”