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WASHINGTON – Newspaper publisher Gannett battles FBI efforts to find out who read a particular USA Today story about a fatal February shooting near Fort Lauderdale, Florida in which two FBI agents were killed and three wounded .
The subpoena, served on Gannett in April, seeks information on who accessed the news article online during a 35-minute window starting at 8 p.m. on the day of the shootings. The request – signed by a senior FBI agent in Maryland – doesn’t seem to ask for the names of those reading the story when the news agency has such information. Instead, the subpoena looks for internet addresses and cell phone information that could identify the readers.
The information sought “relates to a federal criminal investigation conducted by the FBI,” said the subpoena.
In a lawsuit in the US District Court in Washington, Gannett’s attorneys said the claim violated the First Amendment. They also complained that the FBI appeared to have ignored the Justice Department’s policy of obtaining information from the media.
“A government request for records that would identify certain individuals reading certain expressive materials, such as the subpoena in question, encroaches on the rights of both the editor and the reader in the First Amendment and must be withdrawn accordingly,” wrote lawyers Charles Tobin and Maxwell Mishkin continue on behalf of Gannett.
One of the cases cited by Gannett’s attorneys is a fight that broke out in 1998 after prosecutors for Independent Counsel Kenneth Starr’s office requested Monica Lewinsky’s book purchase records from the DC bookstore Kramerbooks & Afterwords and another outlet when investigators tried to track down gifts, which she had bought for President Bill Clintons. A judge ruled that the motion implied Lewinsky and the bookstores’ First Amendment rights, causing Starr’s office to drop one subpoena and restrict another.
The allegation that the FBI disregarded Justice Department guidelines for finding media records comes after the department sees criticism from journalists, press freedom advocates, and even President Joe Biden for a series of court orders obtained in leak investigations last year were. The probes received telephone records for journalists from the New York Times, Washington Post, and CNN. Investigators also looked for email metadata but did not appear to have received this information.
A Justice Department spokesman referred questions to the FBI, which failed to provide an immediate response Thursday.
Most of the debate about the Justice Department’s policy of requiring information from the news media has centered on efforts to reveal the sources of journalists, but the regulations appear to go beyond news gathering.
The nature of the ongoing criminal investigation is unclear. Authorities said David Lee Huber, 55, watched the FBI agents arrive through a doorbell camera and then opened fire on them. The agents served a search warrant in a child pornography investigation, the FBI said.
Huber died during the exchange of fire, officials said. That would be hours before the article was written and half a day before the window of time that the FBI seems to be focused on. It is unclear whether the FBI could suspect someone else of involvement in Huber’s activities or whether someone was suspicious of someone else’s reaction to the shooting.
An FBI spokesman told the Miami Herald in February that an inspection team from Washington would investigate the incident in which veteran agents Daniel Alfin and Laura Schwartzenberger were killed.
FBI Director Christopher Wray flew to Florida to attend the funerals of respected agents assigned to a group dedicated to the sexual exploitation of children. The LinkedIn page of the agent who issued the subpoena, J. Brooke Donahue, describes him as overseeing an Operational Unit on Child Exploitation in Linthicum, Maryland.
Gannett filed his motion to waive the subpoena on May 28, one day before the deadline the FBI had set to respond to the subpoena. The motion was published by the US District Court in Washington on Thursday.
The case was assigned to Judge James Boasberg, appointed by President Barack Obama.