FBI Ignores Internal Guidelines To Target Readers Of Reporting On The Shooting Of FBI Agents (Updated)

from the WTF-FBI dept

For some reason, the FBI is targeting readers of reporting on a shooting of FBI agents -- something that's both inexplicable and an oblique assault on the First Amendment rights of those targeted. The news service is fighting back, as Josh Gerstein reports for Politico.

Newspaper publisher Gannett is fighting an effort by the FBI to try to determine who read a specific USA Today story about a deadly shooting in February near Fort Lauderdale, Fla., that left two FBI agents dead and three wounded.

The subpoena, served on Gannett in April, seeks information about who accessed the news article online during a 35-minute window starting just after 8 p.m. on the day of the shootings. The demand — signed by a senior FBI agent in Maryland — does not appear to ask for the names of those who read the story, if the news outlet has such information. Instead, the subpoena seeks internet addresses and mobile phone information that could lead to the identities of the readers.

The FBI says the information is needed for an ongoing "investigation." It's unclear what's being investigated since the shooter was killed by FBI agents after an hours-long standoff. Touching on another bit of Techdirt subject matter, the shooter -- who was being served a warrant for child porn possession -- may have been tipped off by his doorbell camera, perhaps prompting his violent response.

The information sought targets readers who accessed the story several hours after it was published and after the suspect had already been killed. The subpoena [PDF] served by the government shows Gannett immediately raised objections after being served with it, pointing out the FBI appeared to be skirting the DOJ's guidelines for seeking information from new sources, whether it involves journalists or readers.

Since the FBI refused to withdraw the subpoena, Gannett has taken this up with the court directly. The motion to quash [PDF] points out courts have repeatedly upheld protections for news readers, something that has helped American citizens sidestep the government's worst intentions, including the targeting of alleged Communists during the McCarthy-era "Red Scare."

Here's what the Supreme Court said more than 50 years ago:

A requirement that a publisher disclose the identity of those who buy his books, pamphlets, or papers is indeed the beginning of the surveillance of the press… The finger of the government leveled against the press is ominous. Once the government can demand of a publisher the names of purchasers of his publications, the free press as we know it disappears.

The same concerns are raised here, both by the FBI's actions and Gannett's response. While the FBI isn't technically seeking the disclosure of readers' identities (which may or may not be known by USA Today), it is seeking information that will allow the FBI to possibly identify readers. It's pretty much the same thing as telling Gannett to name names, even if the government is too intellectually dishonest to be upfront about it.

And, again, it's unclear what the FBI hopes to accomplish with this subpoena. It seems unlikely readers accessing the story hours after publication and a half-day after the shooter was killed had anything to do with the criminal acts the story covers. Not only that, but the agent issuing the subpoena works for the FBI's Child Exploitation Operational Unit -- content USA Today was very definitely not making available at its site. The whole thing is baffling which makes the constitutional concerns that much more severe. And the lack of immediately apparent investigative importance makes it that much more likely the DOJ's guidelines for targeting protected First Amendment activity were ignored.

UPDATE: The DOJ has withdrawn the subpoena, claiming it was able to identify the "child sexual exploitation offender by other means." While this is good news for Gannett and its readers, it still doesn't answer why the FBI thought the readers of this particular bit of reporting on an event that was covered across the nation included the suspect it was seeking.

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Filed Under: 1st amendment, fbi, subpoena, usa today
Companies: gannett


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  1. icon
    James Burkhardt (profile), 8 Jun 2021 @ 8:45am

    Re: Re:

    It strains credulity that the FBI was aware a known suspected "child sexual exploitation offender" read an article about the violent attempted arrest of an accused Child porn offender in a narrow 30 minute time window and didn't have the information they were requesting. Its narrow framing only suggests they already have the real lead, and are looking for parallel construction, or are on a fishing expedition on a hunch. In either case, accessing the data of hundreds of innocent people is not consistent with fourth amendment jurisprudence and is overly broad. Either they had a lead, and at best they should only have been confirming a specific reader was present, or they were on a fishing expedition and it was even more overly broad. And after the backlash, they confirmed they had a different lead which resolved their case without the need for the overly broad subpeona.


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