What First Amendment? FBI subpoenas USA Today for info on readers of a story about shooting of two FBI agents

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WASHINGTON, DC- Big brother? You decide. In an Associated Press story reported on WFLA News Channel 8 in Florida, the FBI has issued a subpoena to USA Today demanding that outlet provide the agency with information on readers of a USA Today story regarding the fatal shooting of two FBI agents back in February.

The company was served with the subpoena in April and the story gained daylight this week after the paper filed documents in federal court whereby, they asked a judge to quash the subpoena.

The actions by the agency were roundly criticized by First Amendment advocates.

Given the FBI’s rather aggressive stance toward people who were merely in the area of the Capitol on January 6th, the latest revelations are a cautionary tale about the direction this agency is going in. Or more accurately, already is in.

In recent weeks, it has been disclosed that the Justice Department seized email and phone records of media members in at least three instances during the Trump administration.

Those three incidents have raised concerns about the levels the FBI and other investigatory agencies are going to in using news organizations and their employees in their investigations.

 

The subpoena demanded that USA Today provide the agency with information regarding anyone who merely clicked on the article during a period of about 35 minutes on the day after the shooting, between the hours of 8:03 pm to 8:38 pm.

The subpoena seeks the IP addresses, along with mobile phone identification information for anyone who read the article.

IP addresses can of course be used to track down the location of a computer, who that computer belongs to and where it is registered. It is not known why the FBI is seeking such information. While the subpoena doesn’t ask for specific names of people who may have read the story, it is fairly easy to obtain once the other information is gained.

The shooting that occurred in Florida obviously drew wide attention, which makes it curious that the FBI has only targeted USA Today. Numerous news organizations reported on the story, including the Associated Press.

When the two agents, Daniel Alfin and Laura Schwartzenberger arrived to serve a federal search warrant on the suspect in a child exploitation case, the suspect, David Huber, 55 opened fire on the two agents.

Schwartzenberger died instantly, while Alfin was able to return fire before succumbing to his wounds. Three others were injured in the firefight. Huber ended up taking his own life before he was able to be taken into custody.

According to the Daily Mail, Huber was believed to have used a doorbell camera to monitor the agents prior to opening fire on them through a closed door as they arrived to execute the warrant.

The Daily Mail said that the FBI, in seeking a subpoena right off the bat, actually is violating the Justice Department’s own policies, instead attempting to strong-arm USA Today into turning over information on its readers with no apparent justification for doing so, Gannett Publishing, which owns USA Today said.

In a statement, the paper said:

“A government demand for records that would identify specific individuals who read specific expressive materials, like the Subpoena at issue here, invades the First Amendment rights of both the publisher and the reader, and must be quashed accordingly,” lawyers for the company said.

Thy also added that the subpoena’s using vague language in reference to a “federal criminal investigation” cannot “possibly justify such an abridgment of free speech.”

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The Mail said that under normal circumstances, an agency such as the FBI would contact media companies and ask for information, in more of a cooperative process. Jumping straight to a subpoena is highly unusual.

The FBI has not said why Huber was under investigation in the first place, although the agency seldom comments on active investigations, even when demanding information it needs, the Mail added.

Huber wasn’t listed on any sex offender registries, and he had no Florida prison record other than minor traffic violations on his criminal history.

According to WFLA, the agent who issued the subpoena to USA Today has worked for a long period of time on child exploitation cases and has also testified in several criminal cases tied to child pornography offenses, according to newspaper accounts and other public records.

A First Amendment expert, Jameel Jaffer said the demand by the FBI through a subpoena is highly unusual.

“This is an extraordinary demand that goes to the very heart of the First Amendment. For good reason, the courts have generally refused to give the government access to this kind of sensitive information except in the most unusual circumstances,” said Jaffer, executive director of the Knight First Amendment Institute at Columbia University.

The three incidents that occurred during the Trump administration involved investigators secretly obtaining phone call records of journalists who worked for The Washington Post, The New York Times and CNN in order to attempt to identify sources who leaked national security information in the early days of that administration. Biden has said the Justice Department would not seize reporters’ phone records, although it’s unclear if that will in fact be the case.

Jaffer continued:

“This subpoena, especially when viewed alongside the subpoenas that the Justice Department served under the Trump administration in an effort to obtain journalists’ records, strongly suggests that we need more robust protection for records that implicate the freedoms of speech and the press,” he said.

This is hardly the first time the FBI has walked a fine line between investigative integrity and violating constitutional rights. The Justice Department has conducted questionable practices during both Republican and Democrat administrations, WFLA said.

For example, in 2007, an FBI agent impersonated an Associated Press reporter while investigating bomb threats at a Washington State high school. The agent communicated with a suspect online while impersonating the reporter and then communicated a link to a bogus AP news article. When the suspect clicked on the link, it allowed the FBI to track down the suspect’s location.

In 2014, that ruse was uncovered and in 2016 the FBI placed restrictions on agents posing as reporters, however it did not completely rule out the practice.

Meanwhile in 2013, the FBI secretly obtained two months of phone records for AP reporters and editors which included 20 telephone lines of AP offices and journalists, including home phones and cell phones, WFLA said.

After that was uncovered, then Attorney General Eric Holder, no stranger to underhanded tactics (see Fast and Furious) announced new guidelines for leak investigations which included additional levels of review prior to a journalist being subpoenaed.

These types of activities, taken in totality with the FBI targeting anyone who was within a hair’s breadth of the U.S. Capitol on January 6 should give Americans pause as to what exactly this agency is up to.

Former President Trump warned about the swamp. This whole thing smells pretty swampy to us.  

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