Freedom of speech is under siege across the county, from state and federal legislators, law enforcement officers, politicians and activists of all political persuasions.
In Florida, the book ban is back in the name of protecting students from words and ideas. Rules limit who can demonstrate at the Capitol to those who share the state’s “mission.” City councils are threatening to ban reporters who ask awkward questions at public gatherings. The legislature recently tried (and failed) to rewrite the defamation law to make it easier for the rich and powerful to obscure critics in the Sunshine State.
Now, just when you thought it couldn’t get any worse, it does.
In Kansas, police raided the offices of a weekly newspaper, the Marion County Record, seizing computers and cell phones. They searched the home of the record publisher, Eric Meyer, where his 98-year-old mother, Joann Meyer, a former record publisher, also lived. The next day, Mrs. Meyer died, reportedly from the stress of the raid.
What the record supposedly did to break the law is a mystery, as the statement of probable cause justifying the search has not been released. There were allegations of hacking and identity theft, but no details were given.
Legal experts called the raids a violation of both the First Amendment and the Privacy Protection Act of 1980, which generally prohibits police investigations or seizures of journalists’ “work product” or “documentary material.”
Marion’s police chief countered that the Privacy Protection Act did not apply because the journalists were suspected of committing crimes and thus exempted from the protections of the law.
On Wednesday, the top prosecutor in Marion County announced there was no cause for the search and ordered the return of the seized electronics.
A happy ending? Not quite.
The Kansas raid wasn’t the first time in decades that law enforcement officials flouted provisions of the Privacy Protection Act to search a reporter’s premises and seize their computers. That infamy belongs to federal agents who raided the office of a freelance reporter in Florida in May.
The FBI raided Timothy Burke’s Tampa office and seized computers, cell phones, and hard drives. As in the Kansas case, the explanation of probable cause is classified.
Unlike in Kansas, there has been little media coverage of the Tampa case, and authorities show no signs of backing down. The repercussions of the FBI’s actions could have huge implications for press freedom and your right to know.
The warrant indicates that the FBI is investigating violations of the Computer Fraud and Abuse Act, the federal criminal “hacking” statute, as well as unlawful interceptions of electronic communications under the “eavesdropping” statute.
According to Burke’s lawyers, the case arose last year when he downloaded a full live stream of an unedited interview of Kanye West, now known as Ye, by Tucker Carlson. The feed, available in a publicly accessible corner of the Internet, featured anti-Semitic tirades from Ye that Fox News did not air. Burke edited the feed and provided it to several news shows. According to Burke’s lawyers, “Fox falsely claimed that the raw live streams had been ‘hacked’ and unlawfully ‘intercepted’.”
More: Comment: Opinions such as Kanye West’s anti-Semitic remarks should never be taken as normal
The defense rejected those claims because the files were publicly available. Nevertheless, the court has denied requests to unseal the probable cause affidavit because it could jeopardize the FBI’s investigation. Without the affidavit, the public cannot decide for itself whether the search warrant was warranted or judge Burke’s alleged illegal conduct.
More concerning to Americans are the FBI’s claims that it can act outside the Privacy Protection Act because agents have determined that Burke is not a journalist.
In addition, the FBI seized not only the Fox feeds, but also all the videos downloaded on his computer from public sites, declaring them to be “contraband” because he did not have permission to have or use them.
This begs the question: since when can the government decide who is and who is not a journalist? And under the FBI’s interpretation of the law, what rights do journalists have over publicly available electronic data? Has a document downloaded from the public area of a company website been stolen? What about a post from a public official’s Facebook page? Or information in a YouTube video?
One of Burke’s attorneys, Mark Rasch, an expert on cybercrime and privacy, says he sees a new and worrying direction in the Kansas and Tampa cases. “Searching and then seizing a journalist’s electronics for (suspected) hacking is a worrying new trend,” Rasch said.
“If you execute a search warrant against a journalist or someone who is collecting information to distribute publicly, and you confiscate the contents of what they were about to broadcast or report, that is the essence of prior restraint. It doesn’t matter if you try with a court order, as they did in the case of the Pentagon Papers, or you do it by seizing it personally. It is preliminary restraint.”
We should all be concerned.
Bobby Block is the Executive Director of the First Amendment Foundation.
This article originally appeared on Palm Beach Post: FBI, law enforcement raids on journalists in Florida, Kansas are illegal