A federal magistrate judge ruled on Tuesday that the court, and not the Justice Department, would search devices that the government seized from a Washington Post reporter’s home last month, resolving an impasse over how to handle the materials.
The judge, William B. Porter of the Eastern District of Virginia, came down against an “unsupervised, wholesale” search expedition conducted by the government.
“Allowing the government’s filter team to search a reporter’s work product — most of which consists of unrelated information from confidential sources — is the equivalent of leaving the government’s fox in charge of The Washington Post’s henhouse,” he wrote.
The Federal Bureau of Investigation obtained an iPhone, two computers and other devices when it searched the home of the reporter, Hannah Natanson, who covers the federal government for The Post.
The search stemmed from an investigation into a Maryland government contractor, Aurelio Perez-Lugones, who has been indicted on charges of transmitting and retaining classified national defense information. One issue in the search is just how much information from Ms. Natanson’s devices is relevant to the prosecution. The government, The Post has argued, has a “legitimate interest in only an infinitesimal fraction of the data it has seized.”
The Post, citing the First Amendment and attorney-client privilege, requested that the government refrain from reviewing the material on Ms. Natanson’s devices.
A hearing last week considered The Post’s request that all the devices be returned so that the company could sift through the information and provide relevant materials in compliance with a subpoena it had received on the day of the search. The government pushed for retention of the devices and the deployment of a so-called filter team to evaluate materials on them.
At the hearing, Judge Porter criticized Justice Department officials for failing to mention a 1980 law, the Privacy Protection Act, in seeking a search warrant of Ms. Natanson’s home. That law says a search for reporting materials “shall be unlawful” unless there is probable cause the reporter committed certain crimes to which the materials relate.
“How could you miss it? How could you think it doesn’t apply?” the judge asked a Justice Department lawyer.
In his ruling on Tuesday, Judge Porter noted that the court generally granted prosecutors some latitude on the issue, assuming that they have “satisfied their obligation to disclose controlling and relevant authority.”
Given the department’s omission, however, Judge Porter wrote, “The government’s conduct has disturbed that base-line posture of deference.”
Judge Porter will develop a process for reviewing the materials; a hearing on the case is scheduled for March 4.
In a statement, The Post said, “We applaud the court’s recognition of core First Amendment protections and its rejection of the government’s expansionist arguments for searching Hannah Natanson’s devices and work materials in their entirety and placing itself in charge of determining their relevance.”
The Justice Department did not immediately respond to a request for comment.
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