ALEXANDRIA, Virginia, Feb 20 - U.S. Magistrate Judge William Porter on Friday pressed Justice Department attorneys to explain why they failed to mention a 1980 statute that limits searches of journalists when requesting permission to search the home of Washington Post reporter Hannah Natanson.
During a federal court hearing in Alexandria, Porter asked pointedly, "How could you miss it? How could you say it doesn’t apply?" The judge revealed he had rejected earlier drafts of the proposed search warrant before ultimately approving the search.
Statute at issue
The law Porter referenced is the Privacy Protection Act, enacted in 1980. DOJ attorney Gordon Kromberg told the court that prosecutors had concluded the statute did not apply in circumstances where the reporter was a participant in alleged criminal conduct. Porter acknowledged Kromberg might be correct on the legal interpretation, but expressed frustration that prosecutors had not identified the statute as a consideration when presenting their warrant application.
What was seized
Federal agents from the FBI searched Natanson’s Virginia residence last month and confiscated cellphones and laptop computers. The search was conducted as part of a national security investigation into an alleged disclosure of classified information to Natanson by a government contractor. The Washington Post has stated that neither the newspaper nor Natanson are targets of that probe.
Legal challenge and temporary restrictions
The hearing focused on a legal challenge filed by the Post and Natanson seeking the return of the seized items and contesting the lawfulness of the search. Porter has put a temporary hold on the government’s ability to review the seized materials while that challenge proceeds in court.
Arguments from both sides
Attorneys for the Post argued the raid impeded Natanson’s ability to gather news and posed the risk of exposing sensitive information. Simon Latcovich, representing the newspaper, said the seizure "froze Ms. Natanson’s newsgathering" and raised the possibility that more than 1,000 confidential government sources could be revealed.
Department of Justice lawyers defended the operation as a necessary investigative step in a probe of unlawful disclosure of U.S. government secrets. They said the DOJ intends to use a so-called filter team - a group of FBI agents not involved in the underlying investigation - to review the seized devices and segregate material unrelated to the probe.
Ethics complaint and judicial scrutiny
A press freedom organization has filed an ethics complaint against Kromberg, accusing him of withholding information from the judge. Porter said Kromberg may have a defensible legal position regarding the Privacy Protection Act, but remained critical that the statute was not raised as a factor for judicial consideration when the warrant was sought.
The proceedings place fresh attention on how Justice Department lawyers have handled sensitive searches of journalists’ materials. Porter’s interventions included noting the prior rejections of draft warrants and questioning the completeness of the government’s disclosures to the court.
Next steps
The court will continue to consider the Post and Natanson’s challenge to the search and the dispute over the seized devices. Until that legal challenge is resolved, the government is restricted from accessing the contents of the confiscated electronics under Porter’s temporary order.
Key points
- U.S. Magistrate Judge William Porter questioned DOJ lawyers for not citing the 1980 Privacy Protection Act when seeking approval to search a reporter’s home.
- The FBI seized cellphones and laptops from Washington Post reporter Hannah Natanson as part of a national security probe into an alleged leak by a government contractor; the Post and Natanson say they are not targets.
- Porter has temporarily barred the government from reviewing the seized materials while the Post and Natanson pursue a legal challenge; the DOJ plans to use a filter team to segregate unrelated material.
Risks and uncertainties
- Legal uncertainty about the application of the Privacy Protection Act in cases where reporters are alleged to be participants in criminal conduct - this affects the media and legal sectors.
- Potential exposure of confidential sources and sensitive information if seized materials are reviewed - a risk to journalism and information security sectors.
- Ethics and procedural concerns regarding prosecutorial disclosures to the court, highlighted by an ethics complaint against a DOJ attorney - an uncertainty for judicial oversight and government legal practices.