USA Today posted an article on February 2nd, 2021 related to the shooting of two FBI agents and the suicide of a suspect while the agents tried to serve a search warrant at a Florida apartment in relation to child pornography. The FBI filed a subpoena demanding USA Today to hand over details related to the IP addresses, phone numbers, and other personally identifying information of the readers who accessed the above-mentioned article within a specific 35 minute time frame. The subpoena does not seem to seek the readers’ names.
It had asked USA Today not to disclose the request and provide all the requested information by May 29, 2021. The bureau did not confirm who or what it was trying to track or how electronic records of readers of the story might help the criminal investigation. The request was made in April but has been made public only recently after USA Today filed a case in court requesting the judge to quash the subpoena as it was deemed unconstitutional and violates the First Amendment.
USA Today said its attorneys attempted to contact the FBI in May before filing the case but they never received a reply. The company attorneys also noted that the FBI does not appear to have followed the policy of the Justice Department that mandates law enforcement agencies to first notify and talk to media members whose records they seek and also to get the attorney general’s personal approval before filing any subpoena. The bureau does not appear to have followed these policies and instead the subpoena was signed by a supervisory special agent.
USA Today publisher Maribel Perez Wadsworth released a statement:
“Being forced to tell the government who reads what on our websites is a clear violation of the First Amendment. The FBI’s subpoena asks for private information about the readers of our journalism. We have asked the court to quash the subpoena to protect the important relationship and trust between USA TODAY’s readers and our journalists. We were surprised to receive this subpoena particularly in light of President Biden’s recent statements in support of press freedom. The subpoena is also contrary to the Justice Department’s own guidelines concerning the narrow circumstances in which subpoenas can be issued to the news media."
Multiple rulings have been made in the past where government agencies were not allowed to access similar records. In a 1953 Supreme Court ruling, such requests of information from the government were described as an act that can make people feel like someone is reading over their shoulder. Most of these requests to access journalists’ phone records have been aimed at identifying sources for news stories, rather than particulars of the readers.
President Barack Obama’s first attorney general faced significant controversy over accessing the phone records of journalists working for the Associated Press and Fox News. Following the disclosure, the president issued new and tighter guidelines for how such materials should be obtained. During the Trump administration, the Justice Department tried to access records of journalists at The Washington Post, CNN, and The New York Times.
President Biden announced last month that he would not allow his administration to take journalists’ phone or email records as the practice was wrong. It's not clear whether President Biden’s comments would make the FBI step back from its request to USA Today.
Update: The FBI has withdrawn the subpoena filed against USA Today. The bureau says it found the person through other means. The withdrawal of the subpoena comes just as the Justice Department announced it will no longer secretly obtain reporters' records during leak investigations.