FBI Effort to Expose 'USA Today' Readers Was Likely Unlawful, Experts Say

Christopher Wray, director of the Federal Bureau of Investigation (FBI), pauses during a House Intelligence Committee hearing on April 15, 2021 in Washington, D.C.
Christopher Wray, director of the Federal Bureau of Investigation (FBI), pauses during a House Intelligence Committee hearing on April 15, 2021 in Washington, D.C.
Photo: Pool (Getty Images)

The FBI announced Saturday it had withdrawn a subpoena seeking to identify readers of a USA Today story concerning a Florida shooting that left two of its agents dead. The decision to do so, however, is purportedly unrelated to allegations raised in court last week by USA Today’s publisher, which accused the FBI of violating longstanding Justice Department rules concerning the press.

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An FBI spokesperson told Gizmodo that investigators no longer had the need to identify online readers of the article, saying only that “intervening investigative developments have rendered it unnecessary.”

Attorneys and other civil rights experts reached by Gizmodo on Friday were widely skeptical of the FBI’s push to identify readers of the February article, pointing to an array of concerns centered on First Amendment grounds, as well as DOJ policies for subpoenaing newsrooms.

The subpoena had instructed USA Today to hand over the IP addresses and other identifying information belonging to readers who had accessed the particular story during a 35-minute window on the day of the shooting.

An FBI spokesperson said the shooting happened while agents were serving a warrant in an alleged case of child exploitation. The USA Today subpoena did not seek to compromise the communications of any reporters, or their sources, the spokesperson said.

The FBI’s motivation for trying to identify the article’s readers remains unclear. It’s also unclear whether it obtained that same information by soliciting a third party capable of monitoring traffic to the USA Today site. The story in question was published after the suspect shooter, David Huber, 55, had died by suicide inside a barricaded apartment outside Fort Lauderdale on the morning of February 2.

News of the subpoena arrived on the heels of multiple reports concerning the Justice Department’s targeting of reporters’ communications under Trump—a controversy that has flamed concerns over the chilling effects on journalists’ sources. The revelations provoked harsh criticism from current White House officials, including the president, who personally denounced DOJ’s aggressive tactics.

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Justice officials on Saturday said the government was abandoning all efforts to secretly obtain reporters’ records as part of leak investigations. The announcement came one day after news broke that the Biden Justice Department had continued to pursue reporters’ records initially sought after by Trump administration officials.

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“As a longtime critic of unnecessary government surveillance, it is refreshing to see an administration impose new guardrails for Americans’ privacy,” said Sen. Ron Wyden, who is planning to introduce legislation soon aimed at further protecting journalists and their sources.

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Although not involving the records of any particular journalist, the USA Today subpoena was nevertheless widely denounced by prominent First Amendment defenders.

“This is an extraordinary demand that goes to the very heart of the First Amendment,” Jameel Jaffer, executive director at the Knight First Amendment Institute at Columbia University, told Gizmodo.

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“For good reason, the courts have generally refused to give the government access to this kind of sensitive information except in the most unusual circumstances. It would be a highly atypical case if the FBI had a need for this information so great as to justify the profound intrusion into constitutional rights,” Jaffer said.

David Heller, deputy director of the Media Law Resource Center, said the subpoena issued Gannett—the publisher of USA Today and more than a hundred other newspapers—stood on “very shaky grounds under the First Amendment,” adding there is “no obvious government need for the information sought, let alone a compelling one.”

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Added Heller: “That’s not to say there are no circumstances where readers’ identity can be revealed. But that requires careful judicial balancing of the constitutional issues at stake—not a rubber stamp.”

The FBI had issued the subpoena under administrative authority. This means, unlike a grand jury subpoena, only the approval of a senior FBI supervisor was required, as former FBI agent Michael German, now a fellow with the Brennan Center for Justice’s liberty & national security program, explained.

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“Administrative subpoenas like this one,” German said, “can be issued directly by FBI agents, requiring only a senior supervisor’s approval. For this reason, they have been quite controversial and in fact, the FBI’s use of them has been fairly strictly limited by Congress, to just a few types of investigations.”

“The FBI has long sought to broaden this authority,” he added, “but this case is a good example of why that is a bad idea.”

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DOJ’s office of legal policy has previously told Congress that the use of administrative subpoenas is an important tool for investigating child sexual exploitation, writing in 2001, for instance: “In cases where children are at ‘high risk’ and/or may be in imminent danger, the execution of an administrative subpoena allows immediate requests to be made to the appropriate entity.”

German, however, pointed to the timeline offered by Gannett in court, saying the amount of time elapsed suggested the case did not involve “imminent” risk. (Gannett said in court its motion for the FBI to withdraw the subpoena was made nearly a month after it was received and that the FBI did not immediately respond, except to acknowledge receiving the publisher’s motion.)

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“The FBI and DOJ’s failure to timely respond to Gannett’s letter suggests it perhaps was not such an urgent matter, in addition to the failure to follow the policy regarding subpoenas to the press,” German said.

Gannett had taken other issue with the subpoena, pointing to long-standing policies requiring the FBI to give newsrooms advanced warning when seeking information, except under limited circumstances. The rules, enacted more than six years ago, also require the head of the Justice Department to sign off on efforts to compel journalists to disclose information.

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The rules say the government is to pursue negotiations with news organizations before issuing subpoenas—which are often accompanied by a gag order—unless doing so would cause 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.”

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Gannett argued in court these procedures had not been followed, saying the subpoena was therefore “not authorized under federal regulations, in additional to being unconstitutional.”

“Our attorneys attempted to contact the FBI before we moved to fight the subpoena in court and afterward,” Maribel Perez Wadsworth, publisher of USA Today, told Gizmodo on Friday. “Despite these attempts, we never received any substantive reply nor any meaningful explanation of the asserted basis for the subpoena.”

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“Being forced to tell the government who reads what on our websites is a clear violation the First Amendment,” Wadsworth added.

“Having read Gannett’s legal papers, I agree with them completely,” said David Greene, civil liberties director at the Electronic Frontier Foundation. “The subpoena threatens the First Amendment rights of the reader, and doesn’t seem to be incompliance with DOJ’s guidelines regarding access to press materials either.”

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“It is not evident to me either how these subpoenas pertain to a truly urgent matter that would justify such a radical departure from the established procedures,” Greene said.

German, who declined to comment on the specific arguments in the case, said a failure by an agency generally to follow its own policies would raise “serious questions about the legitimacy of whatever actions it took in violation of those policies,” and would further justify “serious scrutiny.”

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Prior to the FBI withdrawing the subpoena, the Reporters Committee for Freedom of the Press had publicly demanded an explanation.

“As this incident is the first we know of regarding a subpoena to a news organization authorized by President Biden’s administration, we call on the Justice Department and the FBI to immediately explain how officials applied these long-standing policies that limit when and in what manner the government can seek records from news organizations,” said Bruce Brown, the committee’s executive director.

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Parker Higgins, a spokesperson at Freedom of the Press Foundation, said the timing of the Gannett subpoena speaks to a pattern of press violations that transcends electoral politics; a revelation that follows a months’ worth of reporting regarding the Trump Justice Department’s seizure of journalists phone records at the New York Times, Washington Post, and CNN; apparent efforts to expose White House critics that President Biden firmly denounced last month.

Government demands to identify news readers are no less egregious, Higgins said. (Higgins is a past contributor to Gizmodo on matters of privacy and digital rights.)

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“Reader privacy is a fundamental aspect of press freedom, and that the government should not only seek this data, but ask a publisher to produce it under a gag order, should strike anybody concerned with that principle as outrageous,” he said.

Senior Reporter, Privacy & Security

DISCUSSION

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GenderRevealOrdnanceDisposal

That's good. Liberty issues aside, I cannot think of anything more humiliating than being recognized as a USA Today reader.