The Privacy Act and media leaks

As reported by Politico, it appears that there may be an important Privacy Act media leak subpoena case cooking in federal court in the District of Columbia.

It involves subpoenas issued to reporter Catherine Herridge, a former Fox News correspondent who now works at CBS News, and Fox News itself in connection with 2017 reporting on an FBI counterintelligence investigation. The subpoenas seek testimony and documents related to Herridge’s confidential sources in the case, and were the subject of a hearing last Tuesday before Judge Christopher Cooper of the U.S. District Court for the District of Columbia on Fox’s and Herridge’s motions to quash.

The plaintiff in the case is a Chinese American scientist, Yanping Chen, who owns and runs the University of Management and Technology, based in Arlington, Virginia. Starting in 2010, the FBI initiated a counterintelligence investigation into Chen and UMT, which ended in 2016 with a decision not to bring charges. In 2017, Herridge and Fox News reported out several stories on the probe.

Alleging that the stories contained private information that had been leaked by government officials in violation of the Privacy Act, Chen sued the Justice Department, FBI, Department of Homeland Security, and the Department of Defense, and subpoenaed Fox and Herridge.

Represented by Patrick Philbin, former White House deputy counsel during the Trump administration, Fox and Herridge sought to quash the subpoenas under the longstanding precedent in the U.S. Court of Appeals for the District of Columbia Circuit, Zerilli v. Smith. That case holds that non-party reporters seeking protection from compelled testimony in civil suits in the D.C. Circuit should prevail save in “exceptional cases,” where the information is central to the plaintiff’s claims and where the plaintiff has exhausted other possible sources for the information sought.

We’ll keep following this case — and will add it in a forthcoming update to the Reporters Committee’s chart tracking every federal media leak investigation or prosecution (save solely internal probes by, for instance, inspectors general) — but there was an interesting question posed by Judge Cooper: whether the relative rarity of cases like this one should inform the court’s view of the severity of any First Amendment considerations.

Two quick points on that. First, it depends on how you count these cases. There are three prominent Privacy Act civil lawsuits that led to similar confrontations. Zerilli, the first, involved reporting on organized crime and allegedly leaked wiretap transcripts.

Wen Ho Lee — an engineer at Los Alamos National Laboratory who was investigated for espionage and ultimately pled guilty to much-reduced charges — filed the second such case in 2005. Lee, after unsuccessfully subpoenaing government officials to identify the leaker, sought confidential source information from six reporters, five of whom actually faced contempt citations when various courts refused to recognize the privilege. In 2006, the government settled with Lee for $1.6 million in the Privacy Act suit, with, unusually, five media organizations whose reporters faced contempt findings contributing $750,000.

And the third Privacy Act case involved Stephen Hatfill, who, based presumably on government sourcing, had been identified by the press as a “person of interest” in the post-9/11 anthrax letters case. In 2008, his lawsuit settled but not before Judge Reggie Walton found then-USA Today reporter Toni Locy in contempt for refusing to disclose her sources and ordered her to personally pay escalating amounts up to $5,000 a day for noncooperation. Although Locy sought to vindicate the privilege on appeal, Hatfill’s dismissing the case mooted the issue.

Further, if you count major confrontations in leak cases beyond the Privacy Act context, they are not quite as rare. For instance, the Bush administration had then-New York Times reporter Judith Miller jailed for 85 days for refusing to disclose her source in the Valerie Plame leak investigation, and the Obama administration famously tried to enforce subpoenas for testimony from James Risen and Mike Levine, also in national security leak matters.

But the second, larger point is that these kinds of confrontations, even if rare, are still hugely consequential for the work of the press. The best example on that front is that there have been only three cases to arise under the federal Intelligence Identities Protection Act — which criminalizes the public disclosure of the identities of undercover intelligence officers and assets — but two of them were significant in terms of press-government relations.

The first is the aforementioned Valerie Plame case, which began as an investigation into whether the IIPA had been violated. The second was the sixth prosecution of an alleged journalistic source for leaking under the Espionage Act during the Obama administration: John Kiriakou. Each was a major First Amendment controversy.

In other words, one could argue that the relative rarity of such cases demonstrates their sensitivity. And that’s for one simple fact — there are very few scenarios where adherence to professional ethics obligates someone to effectively engage in civil disobedience. That’s why the journalist accepting fines or jail time for refusing to identify a source is both great fodder for drama, but also a really big deal for democracy.

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The Technology and Press Freedom Project at the Reporters Committee for Freedom of the Press uses integrated advocacy — combining the law, policy analysis, and public education — to defend and promote press rights on issues at the intersection of technology and press freedom, such as reporter-source confidentiality protections, electronic surveillance law and policy, and content regulation online and in other media. TPFP is directed by Reporters Committee attorney Gabe Rottman. He works with RCFP Staff Attorney Grayson Clary and Technology and Press Freedom Project Fellow Emily Hockett.