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RCFP analysis: How would the Greenwald charges fare under the First Amendment?

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  1. Newsgathering
Reporters Committee attorneys argue that the charges would likely present a First Amendment violation in the United States.
Photo of journalist Glenn Greenwald

Update (Feb. 7, 2020): A federal judge in Brazil dismissed criminal charges against Glenn Greenwald on Feb. 6, citing a Supreme Court justice’s order preventing law enforcement officials from investigating the journalist based on the “Operation Car Wash” reporting. However, the judge left open the possibility that Greenwald could be charged if the order is overturned.

In January, Brazilian federal prosecutors charged Glenn Greenwald, an American journalist and co-founding editor of The Intercept, with computer crimes.

The New York Times reported that, according to a criminal complaint, officials are accusing Greenwald of being part of a “criminal organization” that they claim hacked into the cellphones of public officials and prosecutors. Greenwald said in a statement released to the Daily Beast shortly after the charges were announced that the Brazilian government “does not believe in basic press freedoms,” and that he “did nothing more than do [his] job as a journalist.”

The charges stem from reporting in The Intercept and The Intercept Brasil on what the publication called the “Secret Brazil Archive,” a trove of leaked materials about a now-controversial anti-corruption task force. (Unless specified, we refer to both The Intercept and The Intercept Brasil as “The Intercept” for ease of reference; reporting on the archive started in the former but appeared in both.)

Stories The Intercept Brasil published starting in June 2019 detailed internal discussions and secret actions by “Operation Car Wash,” the task force, which investigated and successfully prosecuted former President Luiz Inacio Lula da Silva, who otherwise could have challenged current President Jair Bolsonaro in the 2018 presidential election.

The reporting included private communications that The Intercept said showed improper coordination between the lead prosecutor, Deltan Dallagnol, and the presiding judge, Sérgio Moro. Bolsonaro appointed Moro, who sentenced Lula da Silva to prison, Minister of Justice and Public Security following Bolsonaro’s election.

The Intercept said that the chats, recordings, videos, and other documents were provided by an anonymous source, and “reveal serious wrongdoing” by officials.

Since The Intercept published its investigation, Brazilian officials have appeared to focus on Greenwald’s reporting and alleged communications with sources for the material.

In July, Greenwald and two other journalists reported that Brazil’s federal police had arrested four people accused of hacking officials’ Telegram accounts. Prosecutors reportedly believed that the individuals provided some content from the hacked accounts to The Intercept. At the time, The Intercept noted that it would not comment on the arrests of individuals, citing its commitment to protecting anonymous sources.

The publication also said that Brazilian officials had stepped up verbal attacks on the media about the leak, accusing reporters and editors at The Intercept and other outlets of being “allies” of the hackers. Prosecutors released a statement accusing the outlet of sharing “biased content” and “fake news.”

Shortly after The Intercept’s reporting, Bolsonaro threatened that Greenwald could be prosecuted and imprisoned. Greenwald’s reporting on the leaks also drew outrage from members of Brazil’s National Congress, and he received death threats.

Legal Issues

Brazilian law, like U.S. law, generally allows journalists to publish information of public concern, even if it has been illegally obtained by a third party, according to a Brazilian media attorney interviewed by the Columbia Journalism Review last summer.

However, Brazilian prosecutors are claiming that Greenwald’s conduct went beyond what is protected. Prosecutors say they are particularly concerned with the hacking of Moro’s devices. They allege Greenwald actively communicated with the hackers and encouraged them to delete archives that they had shared with The Intercept.

They said in a statement that audio found on the seized laptop of one of the alleged hackers showed Greenwald advising him to erase all messages linked to The Intercept while the sources still had access to the cloud-based Telegram communications of the government officials. The statement also accused Greenwald of “seeking to subvert the idea of protection of a journalistic source into immunity to guide criminals.”

Greenwald has said that he received the material used in the reporting before the alleged telephone hacking. The allegations in the complaint are consistent with that statement.

Were this case in the United States, the First Amendment rule that reporters who legally acquire material can publish it without fear of criminal prosecution, even if the material was acquired illegally by a source, would probably apply. That rule, articulated in the context of wiretapping law by the Supreme Court in Bartnicki v. Vopper, is based on the logic that the First Amendment protects robust political debate, and the use of criminal laws to punish reporters who themselves did nothing wrong would chill public discourse.

One case — Peavy v. WFAA — could suggest otherwise, but it predated Bartnicki and involved different factual allegations. There, the plaintiffs brought an action against a television station, its reporter, and the reporter’s sources alleging a violation of wiretap laws. The plaintiffs alleged that the sources, their neighbors, intercepted the plaintiffs’ cordless phone conversations using a police scanner.

After making recordings of the intercepted phone calls, the sources then approached the reporter, asking him whether he wanted a copy of the recordings and if he wanted any future tapes they might make. The reporter told the sources yes. At the time, he also told them that for future recordings, they should not turn the recorder off and on when taping the calls. According to the record, the reporter wanted to prevent charges that the tape had been doctored.

The court stated this advice was sufficient to allege that the reporter procured the interception of the communications in violation of federal and state wiretapping laws. In other words, the court found that the reporter had some role in directing how the illegal interception took place.

Further, a more recent federal appeals court decision, Jean v. Massachusetts State Police, applied Bartnicki to protect a blogger who passively received illegally recorded video even though she knew it had been illegally recorded. (Peavy was decided by the U.S. Court of Appeals for the Fifth Circuit in 2000, and Jean was decided by the U.S. Court of Appeals for the First Circuit in 2007.)

It is not uncommon for reporters to confer with sources on how to best maintain source anonymity. For his part, Greenwald has denied any involvement in the underlying hacking, telling the New Yorker, “[W]hen the source first talked to me, he had already obtained all the material that he ended up providing us, making it logically impossible for me to have in any way participated in that act.”

Prosecutors claim that Greenwald was in contact with the hackers while they had access to the Brazilian officials’ Telegram communications, but they cite no evidence that he directed any interception. We reviewed a copy of the complaint translated from Portuguese to English through Google Translate.

In one exchange, reproduced on pages 60-62 of the complaint, the source asks for guidance on whether to pull additional material from the cloud Telegram account. Greenwald does not respond. Greenwald goes on, however, to suggest that the source could delete any material to protect the source’s identity and then says he “cannot give advice.” (The complaint alleges that Greenwald is “cautious” in his words because “he knows that the conduct he is practicing is irregular.”)

That set of facts, if accurate, would be more in line with passive receipt under Jean, and would therefore likely not support criminal hacking charges in the U.S. were the Bartnicki rule applied to the Computer Fraud and Abuse Act. (To our knowledge, that question has never been addressed by a court.)

Given the Brazilian government’s past statements about The Intercept and the nature of the charges, the Reporters Committee and other press freedom advocates have expressed serious concern that prosecutors are misusing Brazilian law to target Greenwald for reporting perceived as critical.

Greenwald has also noted in statements and interviews that he had previously been cleared of wrongdoing by Brazil’s federal police. “Less than two months ago, the Federal Police, examining all the same evidence cited by the Public Ministry, stated explicitly that not only have I never committed any crime but that I exercised extreme caution as a journalist never even to get close to any participation,” he said. “Even the Federal Police under Minister [Sergio] Moro’s command said what is clear to any rational person: I did nothing more than do my job as a journalist — ethically and within the law.”

In August, following a petition to the Brazilian Supreme Court by the political party Rede Sustenabilidade, Minister Gilmar Mendes, a member of the court, issued an opinion ordering a halt to any investigation of Greenwald for his reporting after another outlet reported that his finances were under scrutiny. The petitioning party had previously been a supporter of Moro, but switched its position following the reporting on Operation Car Wash.

International response

Members of Congress expressed concerns over the charges, and press freedom groups have decried the move.

The Reporters Committee noted in a statement that the charges raise serious concerns about whether other governments will feel empowered to adopt the emerging practice of using criminal hacking laws to silence the press for critical reporting.

Gabe Rottman, director of the Reporters Committee’s Technology and Press Freedom Project and one of the authors of this analysis, noted that “Computer crime laws are particularly worrisome when applied to newsgathering because they are often vague and can be misused to cover innocuous activity — activity which in the U.S. also has constitutional protections.”

The Reporters Committee also joined 40 other press freedom organizations in an open letter organized by the Freedom of the Press Foundation and Reporters Without Borders to Brazilian authorities opposing the charges.

The Reporters Committee regularly files friend-of-the-court briefs and its attorneys represent journalists and news organizations pro bono in court cases that involve First Amendment freedoms, the newsgathering rights of journalists and access to public information. Stay up-to-date on our work by signing up for our monthly newsletter and following us on Twitter or Instagram.

Photo by Martin Dee