St. Paul (Minn.) police secretly seized a reporter’s cellular phone records from his service provider in June 2007 in an apparent effort to find out who gave the reporter an arrest report. The reporter obtained the arrest report, a public document, from a confidential source after police refused to turn it over, saying it was confidential.
The incident came to light Dec. 11, 2007 when Ramsey County Sheriff Bob Fletcher filed an internal affairs complaint related to the seizure of the reporter’s phone records and the phone records of the sheriff’s deputy who allegedly leaked the report.
According to a December 11 report in the St. Paul Pioneer Press, Fletcher also sent St. Paul Police Chief John Harrington a letter protesting the seizure. The letter said the arrest report was public and was correctly made available to the reporter. Seizing the reporter’s phone records in an attempt to uncover the identity of the source “create[d] an unacceptable atmosphere of intimidation and [was] contrary to the principles of free expression,” he wrote.
Tom Lyden, a 14-year veteran television reporter for Fox affiliate KMSP whose phone records were seized, had sought the arrest report for a story about a June 7, 2007 road rage incident in which an undercover police officer was shot. A person riding along with the suspect in that incident had apparently been arrested seven years earlier after a similar road rage incident, the Pioneer Press reported Dec. 11, 2007.
Initial reports from The Associated Press (AP) and the Pioneer Press said that authorities gained access to the phone records with an “administrative subpoena,” but later reports in the Minneapolis Star Tribune said a search warrant had been issued. According to a Dec. 13, 2007 Star Tribune story, either method represented an apparent attempt by authorities to evade state and federal laws that protect reporters from forced disclosure of confidential sources and make warrants for newsroom searches difficult to obtain.
Under Minnesota law, Minn. Stat. section 388.23, an administrative subpoena can be issued by a county attorney or an authorized assistant county attorney. The subpoenas can be issued for many types of records, including phone and cellular phone records. The records sought must be “relevant to an ongoing legitimate law enforcement investigation.” The person or entity receiving the subpoena may not disclose receipt of the subpoena unless it is necessary to find the records sought or a court orders disclosure.
The statute means that a county attorney, without judicial oversight, can force cell phone service providers to turn over the requested records without telling the person about whom the records were kept.
If a subpoena had been issued directly to Lyden, Minnesota’s reporter shield law would have protected the identity of his source.
The shield law, or Free Flow of Information Act, Minn. Stat. sectionsection 595.021 – 595.025, prevents forced disclosure of confidential sources unless there is “probable cause” to believe the information is relevant to a serious crime, the information cannot be obtained from another source, and there is a “compelling” interest in disclosure “necessary to prevent an injustice.”
Even though police used a search warrant rather than an administrative subpoena to obtain the records, the decision to ask the phone company rather than Lyden or his employer may have been an effort to avoid a federal law and a U.S. Supreme Court decision that grants newsrooms and news gathering materials heightened protection against searches and seizures.
In 1978 the U.S. Supreme Court held in Zurcher v. Stanford Daily, 436 U.S. 547 (1978), that constitutional protections against unreasonable searches and seizures must be applied with “scrupulous exactitude” when the material sought is protected by the First Amendment. Under the ruling, a warrant allowing officials to search a newsroom or obtain a reporter’s notes or other unpublished materials must state precisely what can be searched and leave as little discretion as possible to the officials conducting the search.
On the heels of Zurcher, Congress passed the Privacy Protection Act, 42 U.S.C. section 2000aa (2000) et seq., extending federal protections for a journalist’s “work product” and “documentary materials” even further.
Under 42 U.S.C. section 2000aa-7 (2000), “work product materials” means materials created in anticipation of publication that include the “mental impressions, conclusions, opinions, or theories” of the author. “Documentary materials” means “materials upon which information is recorded” both electronically and on paper. The definition would include Lyden’s notes identifying the source of the arrest report and other unpublished information about the story.
Under the Privacy Protection Act, officials may not seize documentary materials in connection with a criminal investigation unless the reporter is implicated in the crime, an immediate search is necessary to prevent serious injury or death, “there is reason to believe” that issuing a subpoena and giving notice to the reporter would lead to destruction of the materials, or the reporter has refused a court ordered subpoena and “there is reason to believe” further delay “would threaten the interests of justice.”
Under the fourth category, the statute further requires that reporters who refuse to comply with subpoenas be “afforded adequate opportunity to submit an affidavit setting forth the basis for any contention that the materials sought are not subject to seizure.”
The Privacy Protection Act probably would have protected Lyden’s notes and records related to his confidential source, had police sought a search warrant to obtain Lyden’s notes or search the KMSP newsroom. By searching the phone company’s records instead, police were able to obtain information otherwise protected by the statute without technically violating it.
In addition to the protections enacted by Congress, a provision of the Privacy Act, 42 U.S.C. section 2000a-11, also requires that the U.S. Attorney General adopt rules governing the issuance of subpoenas to journalists and for journalists’ phone records. Those rules, 28 C.F.R. section 50.10, would have prevented officials in the Department of Justice from seizing Lyden’s phone records.
The rules require that federal officials first exhaust all other avenues to obtain the necessary information and then institute negotiations with the reporter in an effort to obtain the information before issuing a subpoena for a reporter’s phone records. If negotiations prove unsuccessful, a subpoena for a reporter’s phone records can only be issued with the approval of the Attorney General.
In a request for approval, federal law enforcement officials must state that there are “reasonable grounds” to believe that a crime has been committed which can only be solved through subpoenaing the reporter’s phone records. Even then, the rules generally require that federal officials notify journalists before issuing the subpoena. Notice is always required within 45 days after the subpoena has been issued.
Lyden told Brian Lambert, an editor at Minneapolis-St. Paul Magazine who writes a blog about local media, that his problem with the police department’s methods was their secret nature. “Go get a real subpoena, present it to my bosses and our lawyers, and let’s see what happens. But do it out in public. This was all done behind closed doors. I wouldn’t have known anything about it if I hadn’t been tipped. I have a problem with that,” he said.
According to a Dec. 14, 2007 report in the Star Tribune, Harrington, the St. Paul police chief who apparently gained access to Lyden’s phone records in an attempt to unveil his source, said he regretted causing “concern or worry” but stopped short of an outright apology. Harrington said the point of the search was to determine who called whom, not to intimidate Lyden.
Harrington also acknowledged that the disputed arrest report was public and should have been released. The police department’s failure to turn over a public record is a potential violation of the Minnesota Government Data Practices Act, Minn. Stat. section 13.01 et seq., which makes all state government data presumptively open to the public.
The Data Practices Act creates civil remedies for violations of the statute and makes willful violation by a government official a misdemeanor. A police officer who knew the arrest report was public and still withheld it could be criminally prosecuted.
Harrington also said police had stopped investigating the alleged “leak” and that Lyden had never been a target of any investigation, a Dec. 14, 2007 AP report said.
But according to the Star Tribune report, Lyden did not buy Harrington’s explanation. “I think they went after [the records] under false pretenses,” he said. “It was an effort to dry up my sources.”
The search warrant, unsealed following Harrington’s comments on Dec. 14, 2007, showed that police had seized more than two month’s worth of Lyden’s phone records, the AP reported on December 18. But according to a St. Paul police spokesman, they had examined only a six-hour period.
According to a Dec. 18, 2007 story in the Pioneer Press, Jane Kirtley, director of the Silha Center and professor of media ethics and law at the University of Minnesota, said the search warrant covered more records than necessary. “I don’t see how you can avoid the interpretation that they want to short-circuit communication between [Lyden and his source] … . There’s simply no reason to obtain records for this lengthy period of time,” she said.
– Michael Schoepf
Silha Research Assistant