A federal judge today ordered the US government to stop searching devices seized from the house of a Washington Post reporter. It may be only a temporary reprieve for the Post and reporter Hannah Natanson, however. Further proceedings will be held on whether the search can resume or whether the government must return the devices.
Natanson herself isn’t the subject of investigation, but the FBI executed a search warrant at her home and seized her work and personal devices last week as part of an investigation into alleged leaks by a Pentagon contractor. The Post filed a motion to force the return of the reporter’s property, and a separate motion for a standstill order that would prevent review of the seized devices until the court rules on whether they must be returned.
“Almost none of the seized data is even potentially responsive to the warrant, which seeks only records received from or relating to a single government contractor,” a Post court filing today said. “The seized data is core First Amendment-protected material, and some is protected by the attorney-client privilege.”
The materials “should be returned because the search and seizure of Natanson’s reporting materials was an unconstitutional prior restraint—government action that blocks expressive activity before it can occur,” the filing said, adding that the “government’s legitimate interests can be satisfied by issuing a subpoena to Natanson and/or The Post for the same items sought by the warrant.” The multi-device seizure has “suppressed The Post and Natanson’s ability to publish stories on completely unrelated topics,” the filing said.
US Magistrate Judge William Porter today granted the motion for a standstill order. “The government must preserve but must not review any of the materials that law enforcement seized pursuant to search warrants the Court issued… until the Court authorizes review of the materials by further order,” the ruling said.
The Post asked for an expedited briefing and hearing schedule. Porter ordered the government to file a reply by January 28 and scheduled oral arguments for February 6.
Post: “Government refused” to stop search
FBI agents reportedly seized Natanson’s phone, a 1TB portable hard drive, a device for recording interviews, a Garmin watch, a personal laptop, and a laptop issued by The Washington Post. Natanson has said she’s built up a contact list of 1,100 current and former government employees and communicates with them in encrypted Signal chats.
“The day the FBI raided Natanson’s residence, undersigned counsel reached out to the government to advise that the seized items contain materials protected by the First Amendment and the attorney-client privileges,” attorneys for The Washington Post and Natanson told the court. “Undersigned counsel asked the government to refrain from reviewing the documents pending judicial resolution of the dispute, but the government refused.”
The filing said that unless a standstill order is issued, “the government will commence an unrestrained search of a journalist’s work product that violates the First Amendment and the attorney-client privilege, ignores federal statutory safeguards for journalists, and threatens the trust and confidentiality of sources.”
The six devices seized from Natanson “contain essentially her entire professional universe: more than 30,000 Post emails from the last year alone, confidential information from and about sources (including her sources and her colleagues’ sources), recordings of interviews, notes on story concepts and ideas, drafts of potential stories, communications with colleagues about sources and stories, and The Post’s content management system that houses all articles in progress,” the Post said. “The devices also housed Natanson’s encrypted Signal messaging platform that she used to communicate with her more than 1,100 sources. Without her devices, she ‘literally cannot contact’ these sources.”
The devices also contain personal records like medical information, financial information, and details on wedding planning, the Post said. “The government seized this proverbial haystack in an attempt to locate a needle,” the Post said.
Search “intended to intimidate and retaliate”
The case involves Aurelio Perez-Lugones, a system administrator with a top-secret security clearance, who was accused of taking classified intelligence reports home.
“Even the government cannot expect to find many records responsive to the warrant in this ocean of data because its criminal complaint alleges that Perez-Lugones possessed only a small number of documents potentially containing classified or secret information, which he only began collecting three months ago,” the Post said. “Meanwhile, Natanson has thousands of communications across her more than 1,100 sources. And her devices contain years of data about past and current confidential sources and other unpublished materials. At best, the government has a legitimate interest in only an infinitesimal fraction of the data it has seized.”
The Post suggested that instead of poring through all of Natanson’s devices, the government could get a subpoena “for the same items sought by the warrant—communications with Perez-Lugones, or records allegedly received from him.”
The Freedom of the Press Foundation today said the judge was right to temporarily block the review of materials and should block the review permanently after the scheduled hearing.
“The search and seizure of Washington Post reporter Hannah Natanson’s records is unconstitutional and illegal in its entirety,” said Seth Stern, the group’s chief of advocacy. “But even the Trump administration’s policies require searches of journalists’ materials to be narrow and targeted and that authorities use filter teams and other measures to avoid searching protected records. That the administration wouldn’t follow its own guidelines shows that the raid on Natanson’s home wasn’t about any criminal investigation, and certainly wasn’t about national security. It was a fishing expedition intended to intimidate and retaliate against a journalist who had managed to cultivate sources all over the government.”
Originally published at Ars Technica
