On Wednesday, CNN Executive Vice President and General Counsel David Vigilante made a revelation sure to startle those unaware of the state's vast power to not just seize information from journalists but bully their employers into silence about it under penalty of jail time.
"Since July 17, 2020," Vigilante wrote, "I have been bound by a gag order or a sealing order that prohibited me from discussing, or even acknowledging, that the government was seeking to compel the disclosure of the professional email communications of CNN reporter Barbara Starr."
The Justice Department under Attorney General William Barr had been requesting email header data and phone logs of Starr, a Pentagon reporter, dating from June 1 to July 31 of 2017, for reasons that are still unknown to any third parties aside from some federal judges operating a secret court. (Starr herself was not the target of the investigation, the feds confirmed to reporters.)
The Trump administration launched a crackdown in 2017 against national security-related leaks, an effort that led to the secret seizure of three Washington Post reporters' phone records, which was revealed only last month. In doing so, former President Donald Trump's DOJ prosecutors followed the rules and legal justifications established by their predecessors in the Obama administration, which prosecuted more leakers than every prior presidency combined, even charging Fox News White House chief James Rosen as "at the very least, either…an aider, abettor, and/or co-conspirator."
A CNN piece last month laid out the chilling and expansive framework for secret government seizures:
Under DOJ regulations, the department can secretly obtain journalists' records through a court order, without the journalists knowing. […]
"The level of secrecy is something we've been very focused on for years. From our perspective it impacts reporter source privilege and the protections for the reporter," said Katie Townsend, legal director at the Reporters Committee for Freedom of the Press. "These things are routinely filed under seal and kept under seal and maintained under seal indefinitely." […]
DOJ policy also allows prosecutors to obtain journalists' communications without their knowledge through the courts—if the attorney general signs off and the Justice Department determines the case falls under "extraordinary measures," such as harm to national security, and after all other reasonable attempts have been made to obtain the information elsewhere.
"On paper, DOJ established these guidelines and levels of approval that appear fairly stringent," CNN Senior Legal Analyst Elie Honig said. "But it is entirely and solely within DOJ's discretion to seek issuance of a subpoena."
The process in some ways is similar to how federal investigators can secretly obtain communications under the Foreign Intelligence Surveillance Act through the FISA Court.
As with the FISA Court, the secrecy of these proceedings is an excellent tell that the underlying legal justifications for bulldozing Fourth Amendment protections against unreasonable government search and seizure are quite poor. Indeed, one of the only judges to lay eyes on the DOJ's reasoning for harassing CNN concluded that it was based on "speculative predictions, assumptions, and scenarios unanchored in any facts."
Commented CNN's Vigilante: "This was the first characterization of the evidence we had seen, and it was stunning: After months of secret proceedings and heavy-handed enforcement tactics, a neutral judge said that, in large part, the emperor had no clothes."
The CNN general counsel seems to think such doubly punitive measures—the seizure, and the stifle—are rare in the journalism and communications world. "I was aware that such secret orders were used by DOJ on matters of national security," he writes. "However, in the 20 years I have been at CNN, we have never been subject to one. That is likely because the law and existing DOJ regulations establish (at least on paper) a very high bar for such an order to be issued directly against a media organization."
Well, not exactly. As Nick Gillespie and I wrote six years ago, "From press accounts of similar actions at other news publications and social media sites, we know that it is increasingly common for the federal government to demand user information from publications and websites while also stifling their speech rights with gag orders and letters requesting 'voluntary' confidentiality."
We were then especially conscious of the practice because it had just happened to us. On June 2, 2015, the U.S. District Court for the Southern District of New York sent Reason a grand jury subpoena demanding personal information of six people who had left hyperbolic comments about the judge presiding over the controversial federal conviction and sentencing of Silk Road founder Ross Ulbricht.
The comments ranged from speculative fantasy violence ("judges like these that should be taken out back and shot") to darkly referential humor ("Why waste ammunition? Wood chippers get the message across clearly. Especially if you feed them in feet first"), to 100 percent normal Internet speech ("I hope there is a special place in hell reserved for that horrible woman"). None represented a true threat, yet that's how U.S. Attorney for the Southern District Preet Bharara took it.
From our account:
The original subpoena, received late on Tuesday, June 2, did not come with a gag order. However, it came with a letter from Bharara and Assistant U.S. Attorney Niketh Velamoor requesting that we refrain from informing any other parties about the subpoena so as to "preserve the confidentiality of the investigation," and that we notify his office in advance if we intended to do so, even though it also said that we were under "no obligation" to keep the subpoena confidential. […]
So we decided, against the government's request but well within our legal rights, to…notify and share the full subpoena with the six targeted commenters so that they would have a chance to assert their First Amendment rights to anonymity and defend themselves legally against the order.
At about 10:30 am ET on Thursday, June 4, our attorney Gayle Sproul (of Levine, Sullivan, Koch, & Schulz) called Velamoor to discuss the subpoena. The call did not go well. Sproul asked Velamoor to consider scaling back the scope of the subpoena by omitting the more benign commenters. Velamoor said simply, "No." Then Sproul informed him that we would be notifying our commenters about the subpoena to give them the chance to defend their rights to remain anonymous, and that we would not comply with the subpoena as it related to any commenters who moved to quash the subpoena before our compliance deadline. Sproul explained to him that there is case law firmly establishing that these commenters have the right to speak anonymously, and that we would withhold the information of anyone fighting the subpoena. Velamoor disputed that any such free speech rights exist. He asked that we delay notifying the commenters so he could get a court order prohibiting us from disclosing the subpoena to them. We refused. Sproul pointed out that we were perfectly within our rights to share the subpoena given the law and the wording of his own letter. Velamoor then suggested that Reason was "coming close" to interfering with the grand jury investigation. The call ended abruptly.
We notified our commenters immediately, and less than seven hours later came the gag order, preventing us from discussing even the existence of the original subpoena to any outside third party for the next six months. Because none of the six commenters decided to fight the case, and because successfully challenging such grand jury subpoenas is virtually unheard of, we grudgingly complied with the original government records request. But not before word of Bharara's heavy-handed response leaked out, generating a tremendous amount of media criticism, which surely helped us get the gag order lifted.
CNN had no such luck, regaining its free speech rights only after the DOJ-mandated 90 days following compliance with the (somewhat scaled-down) records request. "I've never encountered a situation like this," Vigilante told his colleagues after getting his tongue back. "I felt like there was a sword of Damocles over me for the year."
The CNN general counsel also only learned last month that "the government had also been sweeping other electronic accounts where Barbara communicated about work-related matters. CNN was afforded no opportunity to protect any communications that were maintained by these third-party hosts. And other than knowing none of the other accounts were held by our parent company, AT&T, we have no way of knowing how these responses were handled."
In fact, as we reported here six years ago, while the increasing but still comparatively rare open clashes between the DOJ and news organizations tend to make headlines, the real data collection is happening every day, quietly, in the form of requests and subpoenas to social media companies and other third-party vendors. More:
There has been a mounting conflict between the values of free speech and constitutional due process, with government making increasing demands–often under threat of punishment–for all sorts of information from innocent citizens. Coupled with the rise of a secretive and pervasive surveillance state, this tension means that Americans have no way of knowing just how unfree their speech really is.
While it is impossible to fully ascertain the frequency of information requests from local, state, and federal law enforcement, there is every reason to believe websites are subjected to thousands of demands each year. It is also not clear how other websites interpret the type of letter requesting "voluntary" confidentiality that Reason received. How often is that letter sent along with subpoenas? And how often does it achieve its intended effect of securing silence? In other words, does it have the same effect as a gag order?
In 2013, for instance, Mother Jones reported that Google, Facebook, Twitter, and Microsoft have between them received "tens of thousands of requests for user data from the US government annually," covering hundreds of thousands of accounts. Using corporate transparency reports, the magazine estimated that the companies complied with the demands between 72 percent and 89 percent of the time, and that it's impossible to know how many of those requests were filled without the affected users ever knowing their information had been targeted.
Officials from CNN, The Washington Post, and The New York Times are reportedly scheduled to meet next week with Attorney General Merrick Garland to discuss the DOJ's guidelines and practice when it comes to seizing the data of journalists who are not targets of any investigation. In a free society, and with a government that took seriously its duty to secure Americans' constitutional rights, that would lead to an abolition of such Fourth Amendment transgressions altogether. Alas, we are far away from any such world.