Constitutonal Law

Feds secretly got warrant for Fox reporter's email, claimed news-gathering was likely a crime

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News that federal authorities had apparently looked at the personal email of the chief Washington correspondent for Fox News under a search warrant secretly obtained in a criminal investigation of his 2009 news-gathering activities elicited outrage Monday from media organizations and others.

The warrant, which was both issued and unsealed in 2010, primarily concerned a federal investigation of Stephen Jin-Woo Kim, a former contractor and arms expert accused of leaking classified State Department information about North Korea to James Rosen of Fox News. However, Rosen was also targeted for possible prosecution in the case, accused in an affidavit supporting the warrant of acting “as an aider, abettor and/or co-conspirator” to persuade Kim to violate a criminal law against “gathering, transmitting or losing defense information,” according to the Blog of Legal Times, and the Washington Post (reg. req.).

The warrant, which was approved by a federal court in the District of Columbia, allowed the feds to access not only all email between Rosen and Kim but all of Rosen’s personal Google email over a two-day period, the articles say. Rosen has not been charged with any crime, but Kim was indicted in a 2010 leak case, as an earlier Washington Post (reg. req.) article details.

Although the affidavit claimed that Rosen had likely committed a crime “by employing flattery and playing to Mr. Kim’s vanity and ego,” an expert told the Post that such a claim improperly criminalizes news-gathering.

“Asking for information has never been deemed a crime,” said Steven Aftergood. He serves as director of the Project on Government Secrecy at the Federation of American Scientists. “Neither flattery nor an insistent tone rises to the level of a criminal offense,” he added.

In a written statement provided to the Post, Fox News executive Michael Clemente called the news of the investigation “downright chilling” and promised an unequivocal defense of Rosen’s “right to operate as a member of what up until now has always been a free press.”

See also “AP complains of ‘massive and unprecedented intrusion’ by DOJ into reporters’ phone records” “Obama has worse record than Nixon on press freedoms, says Pentagon Papers lawyer”

Fox News: “Justice Department affidavit labels Fox News journalist as possible ‘co-conspirator’”

Washington Post (reg. req.): “A rare peek into a Justice Department leak probe”

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