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At least one government agency is using subpoenas to target e-mail between journalists and potential sources by going after the source.
Two self-proclaimed fraud convicts recently turned over thousands of documents rather than fight a Securities and Exchange Commission subpoena that asked for, among other things, e-mail the men had exchanged with reporters.
The SEC subpoenaed 37,000 documents about the business practices of Sam Antar and Barry Minkow -- including e-mail the two exchanged with Dow Jones reporters -- as part of a general investigation. Neither had been charged with or accused of wrongdoing.
While neither of the journalists, Michael Rapaport or Ben Dummett, has been subpoenaed themselves, the SEC has asked for copies of e-mail from Antar and Minkow that they’d sent to the reporters.
“It’s like saying, ‘I’m not allowed to hit you with my car from the front, but I can hit you from the back,” said Sam Antar, a former fraudster turned whistle blower who does private investigations of potentially fraudulent companies. “The SEC’s policy is a walking contradiction.”
Antar said he recently decided that fighting the subpoena wasn’t worth a legal battle with the SEC, but he isn’t happy with the agency’s attempt to circumvent their common practice of not subpoenaing the reporters themselves.
Antar says he sent more than 30,000 documents to the SEC for review, but not one of them was a communication with a journalist, from Dow Jones or anywhere else.
“Those files didn’t exist,” Antar said.
While Antar didn’t have any files to turnover, he said he does believe it is worth a public policy debate as to whether government agencies should be crafting subpoenas that target communication with journalists.
Minkow, an ex-con who has spent his time since his release investigating potentially fraudulent executives, was likewise subpoenaed after he came under fire for benefiting from the short sale of stock in companies he investigated. Minkow also complied with the subpoena, which asked for thousands of documents, including communication with reporters.
“I’ve been transparent the whole time,” Minkow said.
Charles Glasser, an attorney at Bloomberg News, said he thinks the idea of a government agency subpoenaing a source or whistle blower is probably nothing new, especially in the world of finance and business.
“There’s no way to know that the communication with reporters hasn’t been disclosed,” he said.
Glasser said while many might argue that reporters should have a privilege similar to that of an attorney/client or doctor/patient relationship, it likely won't happen. Instead, Glasser said reporters can consider the possibility of source subpoenas and find other ways to communicate -- either in person or through personal technology.
“Never underestimate the creativity of a good reporter,” he said.