The Justice Department seized years’ worth of a New York Times reporter’s email and telephone records as part of an investigation into a leak of classified information, the Times reported Thursday, a potentially troubling development for press freedom under the Trump administration that appears set to continue aggressive Obama-era tactics in combatting unauthorized disclosures. The correspondence records of national security reporter Ali Watkins were from her tenure working for BuzzFeed and Politico, before she joined the Times in 2017.
Investigators obtained “years of customer records and subscriber information from telecommunications companies, including Google and Verizon, for two email accounts and a phone number of hers,” according to the Times. They did not have access to the content of the messages, just who Watkins was communicating with and perhaps from where. What is particularly troubling about the incident is the Justice Department obtained the personal information, which was wide ranging in scope and included a college email address from when she was an undergraduate, without notifying Watkins.
That type of conduct by the FBI, while allowable, is only permitted under specific circumstances. From the Times:
Under Justice Department regulations, investigators must clear additional hurdles before they can seek business records that could reveal a reporter’s confidential sources, such as phone and email records. In particular, the rules require the government to have “made all reasonable attempts to obtain the information from alternative, non-media sources” before investigators may target a reporter’s information.
In addition, the rules generally require the Justice Department to notify reporters first to allow them to negotiate over the scope of their demand for information and potentially challenge it in court. The rules permit the attorney general to make an exception to that practice if he “determines that, for compelling reasons, such negotiations would pose a clear and substantial threat to the integrity of the investigation, risk grave harm to national security, or present an imminent risk of death or serious bodily harm.”
The target of the investigation was not Watkins, but the Senate Intelligence Committee’s former director of security James Wolfe, who Watkins had had a previous three-year romantic relationship with. Wolfe was arrested and indicted on Thursday on charges that he lied to the FBI about his contacts with reporters.