Portside

The United States government served search warrants on Google in March 2012 and demanded that the company hand over data from WikiLeaks staff members for the purpose of an investigation into violations of the Espionage Act, Computer Fraud and Abuse Act (CFAA), a larceny statute and a “conspiracy to commit offense or to defraud the United States” statute.

Sarah Harrison, investigations editor, Kristin Hrafnsson, spokesperson and Joseph Farrell, section editor, each had their accounts targeted.

The warrants required the disclosure of: all contents of emails associated, “including stored or preserved copies of emails sent to and from the account, draft emails and deleted emails; all records or other information related to the identity of the account (associated phone numbers, IP addresses, types of services utilized, account status, log files, any credit or bank account numbers associated); all records or other information “stored at any time by an individual using the account; any communications the person had with Google.

Google was apparently under a “gag” order and could not notify the staff of the media organization that their personal data had been subject to a search warrant, however, on December 23, 2014, the company sent the following notice:

As of 10:30 PM EST, it appeared that most US media organizations had panned the news that WikiLeaks had been subject to search warrants for their Google data as part of a federal grand jury investigation. The New York Times, The Washington Post, Associated Press, Los Angeles Times, Reuters, NBC News, CNN and other outlets had not published any reports. No US government officials had commented on the search warrants or the federal grand jury investigation either.

Lawyers for WikiLeaks sent a letter to Google dated January 26, 2014, and stated, “We are astonished and disturbed that Google waited over two and a half years to notify its subscribers that a search warrant was issued for their records.”

The letter explained that WikiLeaks editor-in-chief Julian Assange had a conversation with Google CEO Eric Schmidt about similar orders issued to Twitter. Assange asked Schmidt to inform Google general counsel that they should argue WikiLeaks should be informed of any subpoenas, as Twitter had done in court when it challenged the government.

Google did not provide WikiLeaks with a list of “all material provided to law enforcement or the pendency of any legal proceedings,” the lawyers complained.

“Had Ms. Harrison, Mr. Hrafnsson or Mr. Farrell been aware of such proceedings, they could have intervened and protected their interests including their rights to privacy, association and freedom from illegal searches,” the lawyers added. “While it is too late for our clients to have the notice they should have had, they are still entitled to a list of Google’s disclosures to the government and an explanation why Google waited more than two and a half years to provide any notice.”

The lawyers for WikiLeaks requested in their letter that Google provide them with a list of materials Google disclosed or provided to law enforcement, “a copy of the court order referenced in Google’s emails to our clients,” and “any other legal process or communications involving Google, law enforcement and/or the Eastern District of Virginia relating to these warrants.” They also submitted several questions to the company, including questions about why Google appears to have not initiated any legal challenge.

In 2006, Google fought a government subpoena for “search records for use as evidence in a case where the government” was defending the “constitutionality of the Child Online Protection Act (COPA).” The Electronic Frontier Foundation explained, “The law imposes requirement for those who publish “non-obscene constitutionally protected sexual material online to take difficult and expensive steps to prevent access by minors, steps that would chill publishers of sexual material as well as the adults who want to access such material anonymously.”

Why Google would fight the government in this instance but not when the government was implicating press freedom by going after WikiLeaks staff members is unclear.

On June 19, 2014, Article 19, a prominent organization based in the United Kingdom which works to defend freedom of expression and freedom of information, sent a letter along with a number of other organizations demanding that the Justice Department “officially close all criminal investigations of WikiLeaks and its editor-in-chief, Julian Assange, and to stop harassment and other persecution of WikiLeaks for publishing in the public interest.”

The letter pointed to recent court documents, which made reference to a “still active and ongoing” “criminal/national security investigation” by the FBI and Justice Department over fours year after it had been opened.

“Well-respected legal scholars across the political spectrum have stated that a prosecution of WikiLeaks or Mr. Assange for publishing classified material or interacting with sources could criminalize the newsgathering process and put all editors and journalists at risk of prosecution,” the letter declared.

In May 2014, government attorneys confirmed for a second time that the criminal investigation was not over, as they fought a Freedom of Information Act (FOIA) request by the Electronic Privacy Information Center (EPIC) for records on “individuals targeted for surveillance” for their support or interest in WikiLeaks.

Unknown officials anonymously claimed to Washington Post reporter Sari Horowitz in November 2013 that charges would not be brought against Assange for “publishing classified documents because government lawyers said they could not do so without also prosecuting US news organizations and journalists.”

What the Post’s story overlooked or neglected was how the Justice Department could potentially pursue charges that would essentially criminalize the communication of classified information in the course of engaging in journalism. It also failed to highlight the grand jury that remains empaneled in Alexandria, Virginia.

Additionally, the broadly tailored search warrants are evidence of the fact that the government refuses to recognize that WikiLeaks is staffed by journalists and editors. It refuses to recognize that the organization’s act of publishing US government documents is an act of journalism.

The Justice Department’s conduct in the grand jury investigation is similar to its conduct in the prosecution of journalist Barrett Brown, who was recently sentenced to five years and three months in jail. The government criminalized people from all over the world who contributed to his think tank, Project PM, by treating these people, some of them journalists, as if they were somehow engaged in a conspiracy.

“The government sought from this court a subpoena by which to obtain the identities of all of our contributors,” Brown recalled in his sentencing statement. The judge denied that motion, but, according to Brown, the government still attempted to obtain the records through other means.

Throughout Brown’s prosecution, the government—as it does toward Assange and WikiLeaks—refused to recognize that Brown is, even if he committed crimes, a journalist. Brown reasoned that the government did this so it could deny him First Amendment protections and make it easier for the government to prosecute him.

Imagine the US government had served search warrants on the editors of The New York Times. Imagine Google received these warrants, and they were as broad as the ones issued against WikiLeaks editors—and Google did not fight back. The entire US press corps would be livid, as they rightfully were when it became known that the Justice Department had seized the Associated Press’ phone records for a leak investigation.

In fact, the government recently concluded their relentless pursuit of Times reporter James Risen. They spent years arguing in court that he had no reporter’s privilege and had to reveal his confidential sources so the government could prosecute former CIA officer Jeffrey Sterling for a leak. They seized many of records of his personal communications and even some detailing financial transactions.

While comparatively there may be more of a political cost to the Justice Department if they were to go after The New York Times, one never knows when there might be a presidential administration that does not buckle to public pressure, as was the case with Risen. The legal precedents created as the government pursues WikiLeaks are the same legal precedents that can always be used to go after other journalists in the future. American journalists maintain their collective silence at their profession’s own peril.