Newspaper publisher Gannett is fighting an effort by the FBI to try to determine who read a specific USA Today story about a deadly shooting in February near Fort Lauderdale, Fla., that left two FBI agents dead and three wounded.
The subpoena, served on Gannett in April, seeks information about who accessed the news article online during a 35-minute window starting just after 8 p.m. on the day of the shootings. The demand — signed by a senior FBI agent in Maryland — does not appear to ask for the names of those who read the story, if the news outlet has such information. Instead, the subpoena seeks internet addresses and mobile phone information that could lead to the identities of the readers.
The information being sought “relates to a federal criminal investigation being conducted by the FBI,” the subpoena says.
In a filing in U.S. District Court in Washington, lawyers for Gannett said the demand violates the First Amendment. They also complained that the FBI appears to have ignored the Justice Department’s policy for seeking information from the media.
“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 publisher and reader, and must be quashed accordingly,” attorneys Charles Tobin and Maxwell Mishkin wrote on behalf of Gannett.
One of the cases cited by Gannett’s lawyers is a battle that arose in 1998 after prosecutors from Independent Counsel Kenneth Starr’s office demanded Monica Lewinsky’s book-purchase records from D.C. bookstore Kramerbooks & Afterwords and another outlet as investigators sought to trace gifts she bought for President Bill Clinton. A judge ruled that the request implicated First Amendment rights of Lewinsky and the bookstores, prompting Starr’s office to drop one subpoena and narrow another.
The accusation that the FBI defied the Justice Department’s guidelines for seeking news media records comes as the department is facing criticism from journalists, press freedom advocates and even President Joe Biden for a series of court orders obtained last year in leak investigations. The probes obtained telephone records for journalists at The New York Times, The Washington Post and CNN. Investigators also sought email metadata, but appear to have failed to obtain that information.
A Justice Department spokesperson referred questions to the FBI, which had no immediate comment on Thursday.
Most of the debate over the the Justice Department’s policy on demanding information from the news media has focused on efforts to expose journalists’ sources, but the regulations seem to extend beyond newsgathering.
The nature of the ongoing criminal investigation is unclear. Authorities said David Lee Huber, 55, watched the FBI agents arrive via a doorbell camera, then opened fire on them. The agents were serving a search warrant in a child pornography investigation, the FBI said.
Huber died during the exchange of gunfire, officials said. That would be hours before the article was written and half a day before the window of time the FBI appears to be zeroing in on. It’s unclear whether the FBI might suspect someone else of involvement with Huber’s activities or whether someone drew suspicion by the way they reacted to the shooting.
An FBI spokesperson told the Miami Herald in February that an inspection team from Washington would investigate the episode, which left veteran Agents Daniel Alfin and Laura Schwartzenberger dead.
FBI Director Christopher Wray flew to Florida to attend the funerals for the well-regarded agents, who were assigned to a child sexual exploitation squad. The LinkedIn page for the agent who issued the subpoena, J. Brooke Donahue, describes him as overseeing a Child Exploitation Operational Unit in Linthicum, Md.
Gannett filed its motion to quash the subpoena on May 28, one day before the deadline the FBI set to respond to the subpoena. The motion was made public by U.S. District Court in Washington on Thursday.
The case has been assigned to Judge James Boasberg, an appointee of President Barack Obama.