FBI Ignores Internal Guidelines To Target Readers Of Reporting On The Shooting Of FBI Agents (Updated)

from the WTF-FBI dept

For some reason, the FBI is targeting readers of reporting on a shooting of FBI agents -- something that's both inexplicable and an oblique assault on the First Amendment rights of those targeted. The news service is fighting back, as Josh Gerstein reports for Politico.

Newspaper publisher Gannett is fighting an effort by the FBI to try to determine who read a specific USA Today story about a deadly shooting in February near Fort Lauderdale, Fla., that left two FBI agents dead and three wounded.

The subpoena, served on Gannett in April, seeks information about who accessed the news article online during a 35-minute window starting just after 8 p.m. on the day of the shootings. The demand — signed by a senior FBI agent in Maryland — does not appear to ask for the names of those who read the story, if the news outlet has such information. Instead, the subpoena seeks internet addresses and mobile phone information that could lead to the identities of the readers.

The FBI says the information is needed for an ongoing "investigation." It's unclear what's being investigated since the shooter was killed by FBI agents after an hours-long standoff. Touching on another bit of Techdirt subject matter, the shooter -- who was being served a warrant for child porn possession -- may have been tipped off by his doorbell camera, perhaps prompting his violent response.

The information sought targets readers who accessed the story several hours after it was published and after the suspect had already been killed. The subpoena [PDF] served by the government shows Gannett immediately raised objections after being served with it, pointing out the FBI appeared to be skirting the DOJ's guidelines for seeking information from new sources, whether it involves journalists or readers.

Since the FBI refused to withdraw the subpoena, Gannett has taken this up with the court directly. The motion to quash [PDF] points out courts have repeatedly upheld protections for news readers, something that has helped American citizens sidestep the government's worst intentions, including the targeting of alleged Communists during the McCarthy-era "Red Scare."

Here's what the Supreme Court said more than 50 years ago:

A requirement that a publisher disclose the identity of those who buy his books, pamphlets, or papers is indeed the beginning of the surveillance of the press… The finger of the government leveled against the press is ominous. Once the government can demand of a publisher the names of purchasers of his publications, the free press as we know it disappears.

The same concerns are raised here, both by the FBI's actions and Gannett's response. While the FBI isn't technically seeking the disclosure of readers' identities (which may or may not be known by USA Today), it is seeking information that will allow the FBI to possibly identify readers. It's pretty much the same thing as telling Gannett to name names, even if the government is too intellectually dishonest to be upfront about it.

And, again, it's unclear what the FBI hopes to accomplish with this subpoena. It seems unlikely readers accessing the story hours after publication and a half-day after the shooter was killed had anything to do with the criminal acts the story covers. Not only that, but the agent issuing the subpoena works for the FBI's Child Exploitation Operational Unit -- content USA Today was very definitely not making available at its site. The whole thing is baffling which makes the constitutional concerns that much more severe. And the lack of immediately apparent investigative importance makes it that much more likely the DOJ's guidelines for targeting protected First Amendment activity were ignored.

UPDATE: The DOJ has withdrawn the subpoena, claiming it was able to identify the "child sexual exploitation offender by other means." While this is good news for Gannett and its readers, it still doesn't answer why the FBI thought the readers of this particular bit of reporting on an event that was covered across the nation included the suspect it was seeking.

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Filed Under: 1st amendment, fbi, subpoena, usa today
Companies: gannett


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  • icon
    Upstream (profile), 8 Jun 2021 @ 4:17am

    Intellectually dishonesty

    the government is too intellectually dishonest to be upfront

    This is a pervasive theme in much, if not most, of what the government says and does.

    The same goes for most of the government's C Suite and media co-conspirators.

    reply to this | link to this | view in chronology ]

  • icon
    Chris-Mouse (profile), 8 Jun 2021 @ 5:16am

    This is typical of the 'collect it all' mentality of the Intelligence community. Why bother trying to figure out who to spy on, when it's easier to simply collect everything in one massive haystack, and sort through the haystack at leisure.

    It's not like making the haystack as large as possible is going to make finding that needle any harder.

    reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 8 Jun 2021 @ 6:42am

      Re:

      Giving a specific half-hour interval is not "collect it all." In fact, it seems intentionally narrow so as to avoid such criticism.

      reply to this | link to this | view in chronology ]

      • icon
        James Burkhardt (profile), 8 Jun 2021 @ 8:45am

        Re: Re:

        It strains credulity that the FBI was aware a known suspected "child sexual exploitation offender" read an article about the violent attempted arrest of an accused Child porn offender in a narrow 30 minute time window and didn't have the information they were requesting. Its narrow framing only suggests they already have the real lead, and are looking for parallel construction, or are on a fishing expedition on a hunch. In either case, accessing the data of hundreds of innocent people is not consistent with fourth amendment jurisprudence and is overly broad. Either they had a lead, and at best they should only have been confirming a specific reader was present, or they were on a fishing expedition and it was even more overly broad. And after the backlash, they confirmed they had a different lead which resolved their case without the need for the overly broad subpeona.

        reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 8 Jun 2021 @ 5:18am

    FBI investigative cockroaches

    The FBI couldn't require Gannett file under seal. So they retreat as the light of the press comes to shine on the case. Since they hadn't described precisely what they were hoping to find, they get a free pass to claim "nevermind, we found what we wanted somewhere else".

    What did they find? "what we wanted."

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 8 Jun 2021 @ 6:05am

    when was the last time any of the USA security services actually followed any guidlines, let alone any laws or the constitution themselves? like everything else, they go out the window because they think there is nothing more important than putting the fear of fuck into people so that cases can be won, so that people can be jailed, so the security services win! just the same as the gestapo, under the guise of a different country!!

    reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 8 Jun 2021 @ 6:31pm

      Re:

      when was the last time any of the USA security services actually followed any guidlines, let alone any laws or the constitution themselves?

      Presumably, there's a reason the FBI made these "guidelines" and not rules or laws. We shouldn't be treating "ignored some guidelines" as a scandal; if anything, the scandal should be about why they were only guidelines.

      reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 8 Jun 2021 @ 6:35am

    My guess is that at minute 36, someone posted about the article on a child porn site, bus, etc.

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 8 Jun 2021 @ 7:06am

    Just testing to see if claims of "child porn" reasons would get the press to cough up their readers. If it worked, everything would be because of child porn. Rest assured, they'll try that tactic again.

    reply to this | link to this | view in chronology ]

  • identicon
    Eric, 8 Jun 2021 @ 10:35am

    Inception

    Wonder when techdirt will get the subpoena asking it to identifier IP addresses of readers of this article about the FBI trying to get IP addresses of readers of the USA today article...

    reply to this | link to this | view in chronology ]

  • icon
    Uriel-238 (profile), 8 Jun 2021 @ 1:47pm

    So Pro-tip

    Anonymize the hell out of your connection before connecting to fbi.gov websites.

    Pro'lly a good idea re: dhs.gov

    NSA Haiku generator is working again.

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 8 Jun 2021 @ 5:12pm

    For some reason, the FBI is targeting readers of reporting on a shooting of FBI agents -- something that's both inexplicable and an oblique assault on the First Amendment rights of those targeted.

    This TechDirt article seems almost deliberately obtuse. It is not inexplicable why the FBI tried to do this. There is plenty of information provided from which we can reasonably infer what is probably going on.

    Someone likely posted an exact quote of all or part of the USA Today article on some secret forum (maybe on a dark-web site). Perhaps that poster uses an account there which has previously been used to post illegal content. The timing of the repost is what informs the 35 minute window in their subpoena. The FBI was likely trying to find an IP address for that poster in order to unmask them and hold them responsible for their earlier illegal behavior.

    The FBI doesn’t generally care about anyone who read about the attack on their officers on any other journalism site, nor even those who read the particular USA Today article, except in the limited way it’s trying to expose the specific miscreant it is seeking. The agency isn’t attacking the First Amendment directly, as it doesn’t care about anyone who wrote about the particular article on other sites.

    The FBI is probably trying only to correlate a particular reader’s IP address with that reader’s other illegal activity. Whether or not you support their broad methods for doing so, it is inaccurate to say their actions are wholly inexplicable.

    reply to this | link to this | view in chronology ]


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