Privacy versus the Press

Judge Reggie is back in the news today, granting, in part, Steven Hatfill’s pursuit of journalists’ sources for information that he was the main subject of the FBI’s anthrax investigation. Walton required the journalists themselves to give up their sources, but not the media companies.

Based on the foregoing analysis, the plaintiff’s Motion to Compel Further Testimony from Michael Isikoff, Daniel Klaidman, Allan Lengel, Toni Locy, and James Stewart [D.E. # 157] is granted. These reporters are therefore ordered to comply with the subpoenas issued to them by Dr. Hatfill and to provide full and truthful responses to questions propounded to them by Dr. Hatfill’s attorneys. On the other hand, the motions to quash the subpoenas of ABC, The Washington Post, Newsweek, CBS, The Associated Press, the Baltimore Sun, and The New York Times are granted.

While I’m somewhat comfortable that Walton’s reading of the First Amendment implications is, at least, consistent with the Circuit Court’s decision on the Miller and Cooper decisions (as well as Branzburg), I’m less comfortable of his reading of what is covered under the Privacy Act.

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  1. Anonymous says:

    Wouldnt it be interesting if one of those sources were Karl or Karl’s shop. Leak a suspect at a time when speculation is at it’s height and the administration is under pressure to produce results. Would explain Roves bye-bye yesterday, if he had a head’s up, somehow.

  2. MarkH says:

    My eyes glazed over on part of your post, but on the latter part I think it’s clear Reggie was saying (paraphrasing)

    â€You can go this far, but no further. And, if you don’t get what you need, come back and ask for more and we’ll see at that time whether you can query the corporations too.â€

    I think it’s a pretty typical court order to put off crucial issues this way.

    I’m still impressed with Walton’s performance over the course of all these important cases.

  3. Anonymous says:

    Tom – I am not sure if this is what EW is saying or not, but my take on it, and if this is what she is saying she is right, is that Newsweek should indemnify Isikoff for his legal bills because he is literally the firewall protecting them from attachment for discovery purposes.

    EW – I dunno. I am inclined to think this is a smart and forward thinking posture Judge Walton has taken at this point. There has become a real issue in contemplating a Federal shield law from the consolidation of major media into publicly held and traded businesses, which brings into play the interests of the stockholders. Walton, at least for now, has separated the interests of the business entity from those of the reporter; at least in the initial determination of a plaintiff’s claim of necessity of discovery from the press.

  4. Anonymous says:

    EW-might not the reporters themselves point Hatfill in the right direction? At their employers’? Can Walton expand on his discovery rulings based on what is learned from the reporters?

    â€In other words, Walton understands the Privacy Act to extend to the actions of a sniffer dog in the vicinity of a person’s house, and on that basis, he is ordering the journalists to turn over their sources.â€

    Or the handlers’ interpretation of their dogs’ actions? And just because a dog sniffs something that sets him off, it is not necessarily what the warrant is looking for, and the handlers know this better than anyone. it is not unknown for handlers to induce false â€positives†themselves, in drug cases, to justify probable cause, and expanding the search.

  5. cboldt says:

    This is an interesting case. It will certainly be appealed.

    I find it an interesting â€parallel contrast†with the Miller & Cooper must testify case of the Plame leak investigation. In that case, the government WANTED the information from reporters.

    In this case, the government does NOT want the reporter information to be discovered.

    I haven’t studied the opinion yet, just saw it at HowAppealing.

  6. ArthurKC says:

    It may be that Walton is taking this a step at a time. After the reporters are deposed, if any say their documents are no longer in their possession because that are in the possession of their corporate employers, Walton will re-visit the issue.

    If so, his â€hearsay†explanation will not be applicable. If a reporter writes notes of what a source says and those notes are kept by the employer in the regular course of business — and surely news organizations do — they are business records, an expection to the rule on hearsay, and they should be admissible for the truth of what they say.

  7. Anonymous says:

    All

    I agree the issue of the media company is a two-sided coin. As bmaz points out, you don’t want the decision whether to protect sources or not decided by the fiduciary duties of an executive–as they arguably were in the Cooper case. At the same time, it troubles me that we’re extending First Amendment protection to regular business decisions of large media companies–that, effectively, we took Russert’s claim that his conversation with Libby was protected when, in fact, he was just taking a viewer complaint.

    And in the end, Reggie’s decision will allow the reporters to make their own decisions on sources, which I suppose is a good thing.

  8. Anonymous says:

    Yep. And I want to make clear that what I said was couched in terms of â€at this pointâ€. Sooner or later, as EW implies, the matter of publicly traded, executive driven, media companies has to be dealt with. Until there is a logical and competent Federal shield law protecting reporters, I think Walton’s ruling appears to strike the right balance. As with cboldt, i haven’t read the actual full opinion yet, so it may say something completely different and be bad law; but for now, based on what has been described, I think it is about right.

  9. endofworld says:

    There is one additional problem with determining weather information is useful to common weal,namely the necessity that recipient reporters(or their employers)prove to court that such is the case.
    On the other hand their may be many instances when the information provider on his own decide that this particular information need to be made public and he,in most cases,can posses additional information that helped made his mind.
    And of course journalists have an obvious self interest in not only the initial disclosure of information but also keeping their sources anonymous.
    It is also difficult to see how a journalist can be expected to make a decision on: weather to publish the story with the anonymous sources,not to publish it altogether or refuse to grant anonymity based on public interest;specially if he has to defend it in court which is what will happen.To get to this point he will also have to decide weather the disclosure or possession can breach confidentiality.

    o

  10. Anonymous says:

    …it troubles me that we’re extending First Amendment protection to regular business decisions of large media companies…

    Yes, exactly. We’re demanding more disclosure from corporations under SarbOx regulations as to their finances and the operations of their businesses than we do about potential criminal activity a corporation’s employees may have witnessed, and while their reporting on the same may benefit the corporation? That’s jacked up; knowledge about criminal activity does not become proprietary information. I’m with ArthurKC that Walton may be taking this a step at a time, ultimately requiring business records to be disclosed; I wonder if I missed that back when, having concentrated too heavily on Tatel’s portion of the opinion on Miller-Cooper; did judges Henderson or Sentelle discuss the business record component in their different but concurring opinions?

  11. Anonymous says:

    My knowledge of the Privacy Act isn’t current, and I don’t have a Pacer account so I couldn’t access Walton’s decision through your link, so please excuse my relative ignorance here, as I try to clarify my understanding of this.

    The Privacy Act, it would seem, would protect Hatfill from having the government release information about him. The idea of a record, originally, meant that there was a file system based on names, rather than a protecting a name showed up in some other file that couldn’t be looked up by the person’s name. That was in the days before searching computerized files by names was an issue. The basic point was that because government collected so much information about people, people should have a right to make sure it was accurate and that it wasn’t misused (including shared with others.) So, if this information was part of an investigation that was in a file that had Hatfield’s name, it should count as a record. Presumably, the information about the dogs got into his file. But even if it didn’t, the intent was to prevent the government from leaking information about individuals. But it seems that this goes even beyond that if the accusation is that it was used to cover up ineptitude and to smear the individual. I don’t recall the Privacy Act even addressing what seems like the next step here of using the information to intentionally besmirch someone. That sounds more like harassment.

  12. cboldt says:

    Still poking my way through the opinion.

    I just searched the opinion in the Miller/Cooper case (04-3138) for the words â€business†and â€record,†(searched each term separately) and I don’t see anything specifically on the point of Time, Inc. giving up information, as opposed to Cooper giving up his notes.

    I wanted to leave a comment though, as to how this case might eventually resolve. The Wen Ho Lee case resolved with an out-of-court settlement. The settlement came following an adverse appellate ruling (CADC 04-5301), and resulted in no need for the reporters to disclose their government sources.

  13. Anonymous says:

    About PACER: sorry, I usually download and upload the filings. I was rushed.

    And while I agree with you in principle, cboldt, that the case will probably result in a settlement, that does rather set up the precedent of these settlements, which anyone could use to get rich. WHich, in turn, puts the media companies in the position of havign to buy off anyone about whom they publish a leak. I suppose that serves the interests of privacy, but I’m not sure it serves the interests of transparency.

    Steve

    I’m not actually sure whether it is a settled issue that this was a deliberately malicious leak. It was deliberate, certainly, to advertise that the government was making progress on the anthrax investigtaion. But as I understand this case, Hatfill doesn’t even have to prove the information was erroneous. That, to me, seems to be one possible difference between Wen Ho Lee and this–that in Lee, the leaks far surpassed the known truth.

    Also, I’m not sure the dog news actually got into the files. I’d need to check the reporting, but several of the searches on Hatfill’s apartment attracted a lot of contemporaneous press coverage. So if an FBI agent told Isikoff, while standing outside the apartment building, that the sniffer dog had gone nuts, would that constitute a record? Mind you, I need to go back to the earlier materials to see if that is the case; but just as a hypothetical…

  14. Anonymous says:

    If a reasonable person would conclude that the information leaked was scandalous and deleterious to Hatfill’s character and reputation (hard to deny that) and the leak was intentional (deliberate), which, you have given, and rightly so, as an assumed fact; then it should legally follow that the leak was â€deliberately maliciousâ€. In this situation, I just don’t see it as a viable defense that a theoretically possible object of the intent formation was other than Hatfill.

  15. cboldt says:

    Richard Jewell was another one who got a settlement before the government disclosed who â€made up the accusation.â€

    If the accusation (leak) is true, the â€victim†doesn’t have a case.

    I’m not sure what sort of transparency issues you have in mind. I do see a potential in the NYT leak of NSA — and that may play in the Tamm(?) case.

    I’m not a big fan of press privilege in principle, because the close it comes to â€absolute†or â€unqualified,†the more it becomes a venue for getting falsehoods out, or giving leakers of classified information (stuff most people will agree should be kept secret, not policy judgements) a less risky way to deliver information.

    It’s been awhile since I thought about the balancing test that Tatel proposed, but I didn’t like it, in principle, in a perjury case because it would have the effect of making the government prove an underlying case before proceeding with the perjury case. That calculus is different if the case -is- the underlying case. That class of â€must submit to discovery†case is one I’ve not thought much about.

  16. Anonymous says:

    So â€true†doesn’t matter?

    That is, if the dogs did, in fact, go crazy when they got near Hatfill’s place, is that something the public deserves to know?

    Take this analogy. The police, then the press, respond to an audible shooting. The police come out of the house where the shooting took place and say, â€a shooting has taken place, in which Mrs. Smith died. Upon finding the victim’s husband holding his gun, we took him into custody.â€

    Can you say that?

  17. cboldt says:

    – Take this analogy. The police, then the press, respond to an audible shooting. The police come out of the house where the shooting took place and say, â€a shooting has taken place, in which Mrs. Smith died. Upon finding the victim’s husband holding his gun, we took him into custody. –

    I think all that is a matter of public record anyway, so yes, it could be reported. See the â€blotter†section in the local paper.

  18. Anonymous says:

    Correct. However, it would not be permissible for the police in the same hypothetical to come out and say â€we’re sure the victim’s husband is holding the gun†when in fact they had never seen him with a weapon. This is a lot closer to Hatfill’s complaint.

  19. cboldt says:

    – But as I understand this case, Hatfill doesn’t even have to prove the information was erroneous. –

    The alternative, to not pierce the shield, would have the effect of making the civil remedies section of the Privacy Act useless in some cases.

    The privacy act doesn’t prevent reporters from doing their own sleuthing and â€following†of government agents, etc. What it aims to prevent is the government from disclosing personal information that it is supposed to maintain in confidentiality.

  20. Anonymous says:

    Wait, wait. The Privacy Act is a Federal law covering information that government collects on people for various things from Social Security information, federal student loans, to military or peace corps records, and FBI investigations. The point of the law was to help people protect the accuracy of information being used in decision making (i.e. are you eligible for disability benefits?), to minimize intrusiveness (agencies are only supposed to collect information needed to make the decisions, not other information they might find interesting), and to prevent that information from being given to others who do not need the information for the reasons it was collected. In part it was a response to the Freedom of Information Act which had a provision exempting private information, but did not spell out what that meant.

    So, local and state police generally would not be covered by the Federal privacy act. (Though there is something there about agencies being funded through federal monies if I recall correctly, this is basically covering Federal agencies.) Second, the veracity of the information is not relevant in the leaking, as far as the Privacy Act is concerned. In fact, the assumption is that the information in people’s files is probably accurate. (You can request to see whatever files you want and to make the case to change what is wrong.) The point is the government collects this information for a specific purpose and it doesn’t have the right to share that information which people have volunteered except for the reasons listed when the information was collected. (You’ll notice a Federal Privacy Act statement on Federal forms that tells you how the information is to be used and the consequences of not providing the information – ie â€you may not get the benefits you apply for.â€)

    In the case of investigative agencies, they do not have to share the information they have on an individual with that individual until the case is closed.

    This was why I was distinguishing between a Privacy Act violation – which is merely disclosing information that the government has on an individual in a file that is organized by people’s names, and other than information that is otherwise public information such was what comes out in court, or identities of people who win a contract, etc.- and harassment. Merely releasing information that is protected by the Privacy Act is a violation. Using such information to hound someone goes well beyond that.

    Note, this is general background. I haven’t done anything with this for years and I’m not sure how things have evolved.

  21. Anonymous says:

    Steve

    Thanks. But that gets to my point. If the FBI agents, above, revealed WHY they were interested in Hatfill–but not that they were (as the citations could be interpreted to support), then how is it different from a crime blotter, unless you know the FBI had put it into a file in the interim. In other words, if Isikoff shows up outside Hatfill’s apartment, and the FBI is digging up his lake, and he asks what’s going on, and they tell him, is that a Privacy Act violation?

    I don’t mean to be stupid here. And I’m not even saying that’s what happened. But this seems to be the narrow line on which the Privacy issue lies.

  22. cboldt says:

    – In other words, if Isikoff shows up outside Hatfill’s apartment, and the FBI is digging up his lake, and he asks what’s going on, and they tell him, is that a Privacy Act violation? –

    Good question, and probably a closer question than the fact pattern here. The plan to drain the lake, and association of that plan with Hatfill, was given to the press two months before the lake was drained.

    Hatfill Complaint (caution – 2.2 Mb pdf file)

    OTOH, if the disclosure is made â€on site,†Hatfill is more likely to know who the agents are (if he’s home, he can walk out and obtain names, etc.), so he wouldn’t need discovery on that from the reporters — in your hypothetical.

  23. Anonymous says:

    I don’t know that the FBI has a blotter like the local police do, and I would assume under normal circumstances, they aren’t interested in telling onlookers what they are looking for or whom they’re investigating. When they looked at Ted Stevens’ house in Girdwood, it was pretty obvious whom they were investigating and I haven’t heard that Stevens was going to sue for a Privacy Act Violation. But you raise a good point. The FBI do put up wanted posters. I don’t think anyone has ever claimed that they were violations of the Privacy Act, so if the government made the point that this is no different from a wanted poster…

    But I should go back and see what Walton actually wrote about this.

  24. cboldt says:

    – I don’t know that the FBI has a blotter like the local police do, and I would assume under normal circumstances, they aren’t interested in telling onlookers what they are looking for or whom they’re investigating. –

    I think the equivalent of the blotter is the indictment announcements. The blotter only contains summonses to court (tickets), which are approximately the same thing.

    As for telling onlookers, in some cases the association of search with person is obvious or can be found out because the location is somebody’s home or office or car.

    With respect to â€Wanted†posters, those people have indictments or arrest warrants pending. The FBI never moved to arrest Hatfill.

  25. Anonymous says:

    Can’t say I am a regular reader of local police blotters, but they generally refer to addresses where activity tool place without individual’s names being stated, brief descriptive fact statements without speculation, etc. I haven’t reviewed the complaint in depth, but clearly it alleges a continued pattern and practice, among numerous individuals and agencies, to create in the media and public an impression of Hatfill that was knowingly not supported by probable cause. This is not a situation where the hypothetical Isikoff stumbled onto the scene or found it of his own independent volition. Hatfill further alleges the Feds actions were performed for an inappropriate purpose. Simply put, the difference Hatfill alleges is the level and aggravated nature of the conduct. This is very common throughout civil injury law; for instance there are many torts for which recovery cannot be had for simple negligence, but can for gross negligence and wanton and willful conduct.

  26. Anonymous says:

    Thanks for those clarifications cboldt.

    I’ve read the MO now and I think Walden read the Privacy Act right. A key point that seems to discredit EW’s â€talking at the scene of investigation†hypothesis is

    â€The depositions of these reporters revealed over 100 separate disclosures
    about Dr. Hatfill that they received directly from either FBI or DOJ sources, purportedly in violation of the Privacy Act.†(p,15)

    It would appear from this that there were lots of disclosures of information about Hatfill, that these were not incidental disclosures, but much more intentional than that.

  27. Anonymous says:

    As for telling onlookers, in some cases the association of search with person is obvious or can be found out because the location is somebody’s home or office or car.

    But that’s what is going on here–there was a search at an apartment in which (presumably) one microbiologist with a history of making fake mobile bioweapons labs and also a history of playing around with white supremacist groups in Zimbabwe (or was it Angola?). This was a place-specific search.

    clearly it alleges a continued pattern and practice, among numerous individuals and agencies, to create in the media and public an impression of Hatfill that was knowingly not supported by probable cause.

    See, this is the part I’m questioning. I, too, need to read through all the filings–but certainly the public reports, not relying on the FBI, get you a good way to probable cause on Hatfill. And I’m not convinced he’s arguing this is a case that is â€knowingly not supported by probable cause.†That is, unlike Lee, I don’t think Hatfill has proved that, the FBI had no basis for suspicion, no basis for continued investigation, and the like. But if it’s a Privacy Act claim, that shouldn’t matter. Even if it is evidence of probable cause, their leak of it–if it indeed counts as a record (indulge me my crappy scenario, for the moment), is still a Privacy Act violation.

  28. cboldt says:

    I think EW’s â€at the scene†hypo (presented as a question at that) is a good one to illustrate what might -not- be a Privacy Act violation, in contrast to the allegations in the complaint.

    You’ve pointed at one place where Walton cites the number of contacts, and the two month interval between tipping reporters and draining the pond is another fact that changes the complexion from â€Walton understands the Privacy Act to extend to the actions of a sniffer dog in the vicinity of a person’s house, and on that basis, he is ordering the journalists to turn over their sources.â€

  29. cboldt says:

    I don’t see â€probable cause†as an issue at all. The FBI had that, they obtained warrants (there’s the probable cause) and conducted the searches.

    But there is a substantial gap between what reporters would have known, without being tipped and fed information from the government, and what they knew and reported. IOW, the public reports were driven, in large part, by illegal leaks.

    The FBI has all sorts of investigations going on at this moment. How much of that is tipped to reporters?

  30. Anonymous says:

    cboldt

    Fair enough, on the dogs (I’m a dog person, what can I say, though of course dogs aren’t drained ponds).

    But I guess I’m generally in agreement with you: the leak was illegal in any case, the Privacy Act is a means to redress that illegal leak.

    My objection is just that the slippery slope on privacy is getting pretty darn slick. It seems to me the appropriate line is closer to records, per se.

    Or, to put it another way, I agree that Hatfill has a complaint. But I’m not sure it’s a privacy act complaint.

  31. Anonymous says:

    Aye. But there is a different standard of probable cause to search a location than there is to arrest or charge. Irrespective of that however, the key is the pattern and practice. I am not saying Hatfill will prevail; he may not. If you take his allegations at face value (which is the standard on a motion to dismiss), they are pretty disturbing and appear plenty actionable to me.

  32. cboldt says:

    – Or, to put it another way, I agree that Hatfill has a complaint. But I’m not sure it’s a privacy act complaint. –

    I think the reason it â€feels†that way is because the case garnered as much publicity as it did. But play the same fact on a small scale, say yourself under investigation (without your knowledge) for sexual predation. What would your reaction be upon seeing your name in the paper and your photo on teevee? Especially if you weren’t! (a predator, that is) Or, how about being reported as a â€suspected computer system trespasser, who has facilitated mass identity theft†— especially since you have such computer expertise

    Naturally, I’m not saying Hatfill is in fact innocent or the investigation was unwarranted. But he’s not been charged, and his life is pretty well upended by the combination of publicity and (if it’s still going on) close personal supervision by government agents.

    One of these days we’ll each (God bless us, every one) either be a minder, or have one, eh?

  33. Anonymous says:

    Eureka! I neglected to pay attention to the fact that the discussion was specifically as to the Privacy Act. I see your argument here, but from a look at the â€Civil Remedies†section of the Privacy Act statute 552(g)(4), I think you at least get such a claim to a jury.

  34. cboldt says:

    His claim survived a motion to dismiss, long ago …

    In conclusion, Dr. Hatfill has stated a viable claim for violation of his Fifth Amendment rights. Thus, his request for declaratory and injunctive relief as to this claim survives the defendants’ motion for dismissal. However, Dr. Hatfill cannot maintain a Bivens action as to this claim because the allegations regarding this claim must be pursued solely pursuant to the Privacy Act. Moreover, the plaintiff has failed to state a claim against the individual defendants for a violation of the First Amendment and thus that claim must be dismissed in its entirety. Finally, the plaintiff’s claim in Count IV must be dismissed, as there is no private right of action arising from the DOJ regulation upon which this count is predicated.

  35. Anonymous says:

    Well, there you go then. You know, it takes a special talent to state the blindingly obvious; apparently I have not lost my skills….

  36. ecoast says:

    If this thread is still active…
    What i don’t understand is why NYT’s Kristoff was not on the reporters list. I remember Kristoff was the first one, or one of the first ones, that broke Hatfill story – first time without naming him and later he named him.
    Maybe Kristoff named him after the other reporters named him? Is that why?

  37. cboldt says:

    – What i don’t understand is why NYT’s Kristoff was not on the reporters list. –

    I’m not familiar with the docket sheet or details of the procedural stance (heck, I’m not even versed in the range of cases mounted!), but found this pretty easily using â€hatfill motion kristoff†(no quotes) in Google, then using the Wikipedia entry that popped up. This article is at FN 17 of the wiki article …

    The Media’s Strange AllyEmma Schwartz – May 01, 2007

    During the first round of depositions, prosecutors wrote, Hatfill subpoenaed six reporters: Newsweek’s Michael Isikoff and Daniel Klaidman, ABC’s Brian Ross, The Washington Post’s Allan Lengel, CBS’s Jim Stewart, and USA Today’s’ Toni Locy. …

    This time, Hatfill has subpoenaed eight news organizations, including three that he didn’t before — The New York Times, The Baltimore Sun, and the Associated Press. …

    Kristoff is named in the article. Purely speculating, pursuit of the second group may be tied up in a legal challenge that Walton did not have the power, under civil procedure, to permit this extension of the discovery process.

  38. cboldt says:

    Make that â€Kristoff is named in the wikipedia entry.†The article I linked to doesn’t name Kristoff.

  39. Anonymous says:

    Kristoff is, I think, a different suit, which appears to have been dismissed (though I’m not sure this hasn’t been reversed on appeal).

  40. cboldt says:

    Kristoff is involved in multiple suits relating to Hatfill.

    The dismissal was Hatfill v. NYT for defamation. That one had gone up for appeal on â€defamation or not,†went back to the trial court, and was dismissed on different grounds the second time around. Interesting interplay there, the NYT argued it could not give up the information on grounds tantamount to state secret! And the government is fighting WITH the reporters, to stifle discovery.

    But Hatfill is pursuing Kristoff to disclose his sources in order that Hatfill can proceed with his Provacy Act claim against the government. The discovery request and (I presume) Motion to Quash are in the â€second batch†referred to at FN 7 of the wiki article.

  41. cboldt says:

    Crap. I should have read the wiki entry and motions more closely before saying the gov’t was arguing WITH NYT. It was not. It (the government) did not want to give NYT information that would facilitate NYT mounting a â€it’s true†defense to defamation. NYT sought information establishing Hatfill’s qualifications as a bio-weapon expert, etc. in order to prepare a defense against the defamation claim.