Two Judges Told DOJ It Had To Disclose Spying On Journalist; DOJ Found A Third Judge Instead

from the incredible dept

Wed, May 29th 2013 9:32am — Mike Masnick

This probably won't come as a surprise, but as people dig deeper into the DOJ's surveillance of reporter James Rosen, now it's come out that the DOJ worked extra hard to avoid having to tell Rosen they were spying on him by bouncing around from judge to judge until they found one who said okay. First, the DOJ argued that they wanted to spy on him for a while, so letting Rosen know (even after a bit of time) would interfere with the ongoing spying:

[US Attorney Ronald C. Machen, Jr.] argued that disclosure of the search warrant would preclude the government from monitoring the account, should such a step become necessary in the investigation. Machen added that “some investigations are continued for many years because, while the evidence is not yet sufficient to bring charges, it is sufficient to have identified criminal subjects and/or criminal activity serious enough to justify continuation of the investigation.”

Of course, since any surveillance of reporters is supposed to be especially narrowly focused, it shouldn't have been allowed for ongoing situations. But it was. And that might be because the DOJ waited until they found a judge who bought their argument.

The new documents show that two judges separately declared that the Justice Department was required to notify Rosen of the search warrant, even if the notification came after a delay. Otherwise: “The subscriber therefore will never know, by being provided a copy of the warrant, for example, that the government secured a warrant and searched the contents of her e-mail account,” Judge John M. Facciola wrote in an opinion rejecting the Obama Administration’s argument.

Machen appealed that decision, and in September, 2010, Royce C. Lamberth, the chief judge in the Federal District Court for the District of Columbia, granted Machen’s request to overturn the order of the two judges.

This suggests, yet again, that this wasn't a one-off effort, but rather part of a larger, concerted effort to spy on journalists and create chilling effects for whistleblowers.

Thank you for reading this Techdirt post. With so many things competing for everyone’s attention these days, we really appreciate you giving us your time. We work hard every day to put quality content out there for our community.

Techdirt is one of the few remaining truly independent media outlets. We do not have a giant corporation behind us, and we rely heavily on our community to support us, in an age when advertisers are increasingly uninterested in sponsoring small, independent sites — especially a site like ours that is unwilling to pull punches in its reporting and analysis.

While other websites have resorted to paywalls, registration requirements, and increasingly annoying/intrusive advertising, we have always kept Techdirt open and available to anyone. But in order to continue doing so, we need your support. We offer a variety of ways for our readers to support us, from direct donations to special subscriptions and cool merchandise — and every little bit helps. Thank you.

–The Techdirt Team

Filed Under: doj, forum shopping, journalists, spying

41 Comments

If you liked this post, you may also be interested in...

Reader Comments

Subscribe: RSS

View by: Time | Thread

silverscarcat (profile), 29 May 2013 @ 8:14am

Familiar tactic...
"Mommy, can I spy on journalists?"
"No."
"Daddy, can I spy on journalists?"
"No."
"Uncle, can I spy on journalists?"
"Eh, sure, why not?"

I guess the DoJ is run by a bunch of 6-year-olds.
[ link to this | view in thread ]
Akari Mizunashi (profile), 29 May 2013 @ 9:01am

Re: Familiar tactic...
What an insult to 6 year olds.
[ link to this | view in thread ]
Anonymous Coward, 29 May 2013 @ 9:51am

And the third judge appears to have gotten it right: http://www.volokh.com/2013/05/28/notice-for-e-mail-warrants-and-the-james-rosen-case/
[ link to this | view in thread ]
Anonymous Coward, 29 May 2013 @ 9:56am

...now it's come out that the DOJ worked extra hard to avoid having to tell Rosen they were spying on him by bouncing around from judge to judge until they found one who said okay.

Pssst! It's not really spying if the subject is told about it.
[ link to this | view in thread ]
Anonymous Coward, 29 May 2013 @ 10:04am

To be evenhanded, the result the DoJ was looking for appears to be appropriate given the relevant statute, which does state that notice is not required[1].

Given that two magistrate judges interpreted it differently however I'm somewhat inclined to wonder whether there is not some other controlling statute as well.

[1] http://www.volokh.com/2013/05/28/notice-for-e-mail-warrants-and-the-james-rosen-case/
[ link to this | view in thread ]
This comment has been flagged by the community. Click here to show it

out_of_the_blue, 29 May 2013 @ 10:05am

Geez, Mike, the Volokh link blows away you and Drudge.
Everyone should read it, ESPECIALLY the last paragraph that 'splains how one can disagree with the secretive intent (as I do) yet the statute is clear, and the first two judges didn't understand it. -- This isn't "judge shopping", just normal pursuit of an appeal.

Besides that, at least there was a warrant, so better than usual for DOJ.

"This probably won't come as a surprise," but I'm forced to find Mike ill-informed at best, and throwing out a quick re-write soon as his template sorta fit, as usual.
[ link to this | view in thread ]
Anonymous Coward, 29 May 2013 @ 10:07am

National Security trumps the constitution. It's the ultimate trump card like the Jack of Spades. Anyone who says otherwise is a terrorist.
[ link to this | view in thread ]
This comment has been flagged by the community. Click here to show it

horse with no name, 29 May 2013 @ 10:08am

Re:
I have to laugh when it appears that the Techdirt story mostly following the lines of the anti-Obama crew from Breibart and Drudge.

It would appear that there wasn't any judge shopping here, rather the justice department fighting for and obtaining a warrant after the first two judges botched the job. The restrictions that would have been in place under the first two judges was not required as a matter of law, and the justice department was smart to keep trying until someone got it right.

Mike may not like the result, but calling it judge shopping is pretty much Republican't BS.
[ link to this | view in thread ]
gorehound (profile), 29 May 2013 @ 10:15am

Re: Familiar tactic...
NO.....run by a bunch of Government Assholes !
[ link to this | view in thread ]
Rick Smith (profile), 29 May 2013 @ 10:20am

Why?
I've always wondered by the official side in these kind of things even have the right/ability to 'shop' around for a judge in the first place.

Seems like a judge should not have any authority to sign an order (or whatever they do in these situations) unless they are officially assigned the duty. And then once ruled on that is the ruling, bar some designated appeal process. The 'officials' shouldn't just be able to go ask another judge, and another, and another, and so on until they get the answer they want.

I mean the last time I checked I, as a citizen can not do that, so why can the government.

I guess what I am saying is that judges should not have their judicial powers outside of specifically assigned cases and that all cases need to be assigned from a known, predefined process. Obviously most of the system already works this way. I just think that the entire system needs to work this way. Judges are people, with personal and political agendas. While as a group I think most do a good job of leaving these out of their work, why leave areas open for abuse.
[ link to this | view in thread ]
Anonymous Coward, 29 May 2013 @ 10:22am

Re: Re:
"justice department was smart"

And it paid off, right?

Oh, wait...
[ link to this | view in thread ]
Anonymous Coward, 29 May 2013 @ 10:33am

Re: Geez, Mike, the Volokh link blows away you and Drudge.
But what needs to be pointed out is that AC has joined the discussion without being a troll about it. He put up his findings and encourages discussion. You should take note of this blue if you ever want to get anywhere. You just incite anger and any point you may have had to the discussion has been destroyed by your continues jabs at Mike as you once again have done.
[ link to this | view in thread ]
Jesse (profile), 29 May 2013 @ 10:36am

All the more reasons for services like wikileaks?
[ link to this | view in thread ]
Robert Doyle (profile), 29 May 2013 @ 10:40am

Citizens do judge shop. Look at all of those IP cases in texas...
[ link to this | view in thread ]
Rob, 29 May 2013 @ 10:47am

Ahhh yes judge shopping. You have to be really careful and patient, but eventually you find a bargain!
[ link to this | view in thread ]
Rob, 29 May 2013 @ 10:49am

Re: Re:
Um they kept going to judge after judge until they got one that gave them what they wanted? Is there another term for it than Judge shopping?
[ link to this | view in thread ]
Anonymous Coward, 29 May 2013 @ 10:50am

Re:
Check Craigslist. You can get some slightly used but still in good condition ones as just a fraction of the cost.
[ link to this | view in thread ]
Anonymous Coward, 29 May 2013 @ 10:54am

Since there was an appeal involved and not true judge shopping, my only question and concern was whether the second judge was notified of the first judge's findings, and whether the appellate judge was notified of the first judge.
If so, this is the way the system is supposed to work, except for the fact that the reporter had no one arguing on his side.
[ link to this | view in thread ]
Anonymous Coward, 29 May 2013 @ 10:54am

Re: Re:
> appears that the Techdirt story mostly following the lines of the anti-Obama crew from Breibart and Drudge.

A few years ago, he was with the anti-Bush crew. It's almost as if he didn't care much whether the letter after the wannabe tyrant's name were D or R.
[ link to this | view in thread ]
Anonymous Coward, 29 May 2013 @ 11:02am

It's just odd that the government can use secret courts and appeal decisions until they get a verdict they like when the person on the other end knows nothing and has no opportunity to defend themselves or appeal to a higher court....
[ link to this | view in thread ]
Anonymous Coward, 29 May 2013 @ 11:08am

Re: Re: Re:
Mike hates all authority.
[ link to this | view in thread ]
Chronno S. Trigger (profile), 29 May 2013 @ 11:11am

Re:
I would argue against that on a couple of things.

First: there are laws other then the one that was sighted that may make the other two judges right, but not in the way that they thought. Journalists have a few laws to protect their sources. I don't know the law well enough to be sure, but the right to keep secret sources could easily change the outcome.

Second: The article you link to suggests that the E-Mail account and all E-Mails in said account are owned in their entirety by the ISP, not the reporter. This is where the crux of the DOJ's argument is. They didn't have to inform the reporter as it was an ISP owned E-Mail account. Again, I don't know the law well enough to say for sure, but as a person, I think that's wrong. I own my E-Mails and no one else.

So, in my opinion, the DOJ is using the letter of one law to defeat the spirit of law in general.
[ link to this | view in thread ]
Mike Masnick (profile), 29 May 2013 @ 11:17am

Re: Re: Re: Re:
Mike hates all authority.

Hating abuse of authority is very different from hating authority.

Most people can tell the difference.
[ link to this | view in thread ]
This comment has been flagged by the community. Click here to show it

Anonymous Coward, 29 May 2013 @ 11:34am

Re: Re: Re: Re: Re:
Except you.
[ link to this | view in thread ]
This comment has been flagged by the community. Click here to show it

Anonymous Coward, 29 May 2013 @ 11:39am

Re: Re: Re: Re: Re: Re:
No u!
[ link to this | view in thread ]
Anonymous Coward, 29 May 2013 @ 11:39am

Re: Re: Re: Re:
Authority is delegated power.

Whose power is being delegated?

In this country the power of governance is supposed to come from the governed themselves.
There can be no way to determine whether those to whom power has been delegated are responsibly using their authority if journalists do not keep us informed.
This is why restricting the freedom of journalists to pursue their trade threatens the freedom of all of us.

I suspect Mike, like many more of us feels that 'the national security card' has been played too many times in the last 12 years, and is it too often being used as an excuse to avoid the scrutiny that citizens must be able to direct at government if liberty is to be preserved.
[ link to this | view in thread ]
DH's Love Child (profile), 29 May 2013 @ 11:42am

Re: Re:
Just be careful where you meet for the exchange. There are some seedy people out there.
[ link to this | view in thread ]
Anonymous Coward, 29 May 2013 @ 11:51am

Re: Re:
There is some stupid law (Electronic Communications Privacy Act (ECPA)) that if an email sits on a server for too long (180 days) it becomes "unclaimed mail" and doesn't have the same protections.

One of those things that makes sense in the physical world but is just moronic in the digital one.

http://consumer.findlaw.com/online-scams/email-privacy-concerns.html
[ link to this | view in thread ]
Anonymous Coward, 29 May 2013 @ 11:59am

Re: Re:
"It would appear that there wasn't any judge shopping here, rather the justice department fighting for and obtaining a warrant after the first two judges botched the job."

Sound like "judge shopping" to me, boy.
[ link to this | view in thread ]
Anonymous Coward, 29 May 2013 @ 12:01pm

Re:
"Pssst! It's not really spying if the subject is told about it."

Psst! It is if it's after the fact, boy!
[ link to this | view in thread ]
Anonymous Coward, 29 May 2013 @ 12:07pm

Tor, GPG and rotating email accounts, should help to protect the media and allow them to report without loss of contacts with resources.
[ link to this | view in thread ]
Anonymous Coward, 29 May 2013 @ 12:17pm

the DoJ have had plenty of practice at this sort of thing. after all, they follow the same sort of procedure when going after file sharers
[ link to this | view in thread ]
Anonymous Coward, 29 May 2013 @ 1:04pm

Re: Re: Re:
And remember, if they ask to meet in front of the Department of Justice, you may get scammed!
[ link to this | view in thread ]
Anonymous, 29 May 2013 @ 3:16pm

I hate this country too, Adam!
[ link to this | view in thread ]
Anonymous, 29 May 2013 @ 3:17pm

Re: Re: Re: Re:
What's wrong with that? So do I.
[ link to this | view in thread ]
Anonymous Coward, 29 May 2013 @ 4:13pm

Reuters Reporting
"At the May 15 hearing, Holder said he had never been involved in any decision to pursue a criminal investigation of a journalist and said it would not be "wise policy" to do so."

"Last week, news outlets reported that Holder had approved a decision to seek a search warrant for Fox News email records as part of a leak investigation. Reuters later reported Holder signed off on a subpoena for telephone records as well."

..."In a defense of Holder, White House spokesman Jay Carney said that Holder had testified truthfully. Carney told reporters at a briefing on Wednesday there was an "extremely large distinction" between describing a reporter as a co-conspirator and charging him with a crime."

http://www.reuters.com/article/2013/05/29/us-usa-justice-holder-idUSBRE94S12I20130529

So the standard now it to list Every bad thing you can on a warrant to get it signed.
Good Guys or Bad Guys, which jumps to that standard?
[ link to this | view in thread ]
art guerrilla (profile), 29 May 2013 @ 6:46pm

Re: Re:
um, so my faxes belong to who ? boise-cascade who made the paper i faxed with, or brother electronics who made the fax machine, or the phone company who 'formatted' it over their phone lines, or the paper company of the recipient of the fax ? ? ?
here's the thing: it hardly took me 5 seconds of 'thought' to think why the 'argument' that the ISP "owns" our email is simply ludicrous on its face...

now, as big an ego as i have, i can't believe judges who -on average, at minimum- have been through college, law school, practiced law for many decades, etc, do NOT see the same HUGE flaw in both logic and fairness...

that leads to one of two inescapable conclusions: the judge(s) who decide in such a manner are either corrupt, or senile...

QED

art guerrilla
aka ann archy
eof
[ link to this | view in thread ]
art guerrilla (profile), 29 May 2013 @ 6:53pm

Re: Why?
well, you have to get past the necessary illusions that the powers that be inculcate in us from birth:
we are NOT a meritocracy...
laws are NOT made for the greatest good for the greatest number...
the justice system is NOT fair...
the media is NOT our watchdog...
and -most importantly- it is NOT 'our' (sic) gummint...

what it is, is a kapitalist Empire to strip the wealth of the planet to benefit the 1%...
...and the pitiful mewlings of the sheeple about this 'natural' state of affairs is beginning to annoy our betters: examples are being made...

(see, shwarz, aaron; manning, bradley; kiriakou, john; etc, ad infinitum...)

art guerrilla
aka ann archy
eof
[ link to this | view in thread ]
Another crooked judge, 30 May 2013 @ 1:05am

Another crooked judge
Royce C. Lamberth, the chief judge in the Federal District Court for the District of Columbia appears to be as crooked as Eric Holder and his bunch of cronies. Unfortunately if anyone goes to jail, I would guarantee Obama will pardon them. What a freaking joke the USA government is.
[ link to this | view in thread ]
Niall (profile), 30 May 2013 @ 3:04am

Re: Another crooked judge
Well, governments will always forgive their bad actors. Look at Scooter Libby...
[ link to this | view in thread ]
Anonymous Coward, 30 May 2013 @ 8:31am

Re: Re: Re: Re: Re:
Hating abuse of authority is very different from hating authority.

Most people can tell the difference.

You think it's all abused, ergo, you hate it all.
[ link to this | view in thread ]