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Great news: DoJ subpoenas news outlet over identity of ... readers?

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Didn’t Joe Biden just announce that he would rein in the Department of Justice’s pursuit of reporters’ records? Instead, a new FBI demand to Gannett shifts the burden from journalists to the readers. The USA Today publisher announced they would fight a subpoena resulting from an FBI probe that demands the IP addresses of everyone who read a story that appeared briefly on its website:

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.

Why in the world would the FBI want the identities of the readers? That’s our first clue that this isn’t a leak probe. However, the actual circumstances of the case don’t make this request look any better:

The nature of the ongoing criminal investigation is unclear. Authorities said David Lee Huber, 55, watched the FBI agents arrive via a doorbell camera, then opened fire on them. The agents were serving a search warrant in a child pornography investigation, the FBI said.

Huber died during the exchange of gunfire, officials said. That would be hours before the article was written and half a day before the window of time the FBI appears to be zeroing in on. It’s unclear whether the FBI might suspect someone else of involvement with Huber’s activities or whether someone drew suspicion by the way they reacted to the shooting.

This kind of subpoena might make sense if the FBI needed to follow up on a threat posted in the comments. If that was the case, then the scope of the subpoena would be far narrower, looking for a single identity associated with the threat — not the identities of everyone who read the article. If the threat appeared on another online platform and was based on the USA Today report, then the FBI should have a specific subpoena for that platform, not USA Today.

One can certainly understand why the FBI wants to go all-out in this case. Huber killed two FBI agents in this standoff, and their desire to track down anyone else involved in Huber’s crimes is not just comprehensible but easy to sympathize with as well. However, that sympathy does not extend to encroaching on First and Fourth Amendment rights of both publishers and readers, especially in this kind of exploratory search. The government should not be able to access what we choose to read, especially in broad searches like this where there is no reasonable suspicion of a crime on anyone‘s part yet.

This concept has popped up occasionally over the years, especially in regard to the PATRIOT Act and “pen register” records held by telecoms. Generally speaking, access to those records are supposed to require a FISA application when dealing with “US persons,” as it’s an intelligence function rather than a law-enforcement function. Even that has come under hot debate and has been increasingly limited by succeeding language in PATRIOT Act renewals. This, however, is specific to a law-enforcement exercise. It might tend to vindicate critics of the law who warned at the time that it would create wiggle room for domestic law enforcement as well as counter-intelligence and counter-terrorism operations, even if the specific exercise didn’t have much to do with the PATRIOT Act itself.

Will the judge see it that way? Better question: will Joe Biden see it that way, especially after he promised to keep the DoJ in line in its relations with media outlets? In their challenge, Gannett explicitly accuses the DoJ of violating their own standards:

Perhaps Gannett might want to appeal this to the White House … or at least make them answer for the apparent contradictions. Stay tuned.