May 20, 2013 No Comments ›› Jake Hammer
Excerpted from POLITICO
A federal judge in Washington ruled in 2010 that the Justice Department was not required by law to notify Fox reporter James Rosen that prosecutors had obtained his emails in connection with an investigation into a leak about North Korean plans to test a nuclear weapon.
In September 2010, Chief U.S. District Court Judge Royce Lamberth overruled the conclusion of federal magistrate John Facciola that Rosen—whose Gmail account was searched—was entitled by law to be informed.
Prosecutors contended that under the statute used to get Rosen’s emails, the Electronic Communications Privacy Act, they were not required to provide any notice of the search.
In his decision (posted here), Lamberth said the usual search warrant notification provisions apply, but found they were “satisfied by leaving a copy of the warrant with a third-party ISP [internet service provider].” That made the notification sort of a moot point, since Google got the warrant in the first place.
“The government has no further obligation to notify the subscriber of the e-mail account at issue,” Lamberth wrote.
It’s unclear when Rosen or Fox became aware of the search. Fox did not respond to POLITICO’s request for comment.
In a statement released to TVNewser, Fox executive vice president for news Michael Clemente indicated the network just became aware that investigators suggested Rosen may have committed a crime in his reporting. “We are outraged to learn today that James Rosen was named a criminal co-conspirator for simply doing his job as a reporter,” Clemente said.
Clemente did not say when Fox learned of the investigation or of the search of his Gmail account. Justice Department guidelines appear to require such notice usually before but sometime after the fact. Those guidelines are separate as a legal matter from the notification requirements in the law.
Google did not respond to a query about the episode or its general policy on advising users when their email, or in this case Gmail, records have been searched.
A Justice Department spokesman declined to comment on any notification to Fox or Rosen. Rosen would have known of the investigation by August 27, 2010 at the latest. That’s the day State Department contractor Stephen Kim was indicted for leaking classified national security information and lying about his contacts with Rosen. Rosen was not named in the indictment, but press reports quickly identified him and said the leaks pertained to a report on North Korean nuclear test plans.
Lamberth’s ruling has been public since November 2010, but the fact that it related to Rosen’s Gmail account did not become clear until the Washington Post obtained court records recently about the search. Those records were apparently unsealed in November 2011, but it’s not clear if they were readily available. The docket numbers on those documents and Lamberth’s ruling match, and there are other indicators that the cases are the same.
In granting the search warrant, Magistrate Alan Kay indicated that investigators could delay giving notice of it for 30 days (rendering it a so-called sneak-and-peek search authorized by the Patriot Act). However, Lamberth’s opinion says Kay later said he’d checked that box in error and the government never requested a 30-day delay.
When prosecutors requested a clarification, Facciola told them to notify the subscriber: in this case, Rosen. That ruling triggered the appeal to Lamberth.