Police blotter: Prosecutors want reporters' hard drives

Pennsylvania's attorney general demands newspaper reporters' hard drives as part of a grand-jury investigation.

Declan McCullagh Former Senior Writer
Declan McCullagh is the chief political correspondent for CNET. You can e-mail him or follow him on Twitter as declanm. Declan previously was a reporter for Time and the Washington bureau chief for Wired and wrote the Taking Liberties section and Other People's Money column for CBS News' Web site.
Declan McCullagh
5 min read
"Police blotter" is a weekly CNET News.com report on the intersection of technology and the law.

What: Pennsylvania Attorney General Tom Corbett demands reporters' entire hard drives.

When: Pennsylvania Supreme Court rules on Oct. 6.

Outcome: Court denies attorney general's request, saying it would be too invasive and create a chilling effect for journalists.

What happened, according to court documents: Investigators in the office of Pennsylvania Attorney General Tom Corbett, for reasons that aren't entirely clear, have become convinced that the Lancaster County coroner gave reporters for the Lancaster Intelligencer Journal his password to a law enforcement Web site. That site contains nonpublic details of local crimes.

So the attorney general did what prosecutors tend to do: Early this year, his office sent Lancaster Newspapers a grand-jury subpoena demanding that the news organization turn over four PCs. (Coroner Gary Kirchner told the Philadelphia Inquirer that he didn't provide any passwords.)

The newspaper's attorneys objected, but they had no success. Corbett's agents seized four hard drives in February and have maintained possession of them ever since.

Then, in June, the newspaper was served with a second subpoena, demanding two computer hard drives used by reporters of the Lancaster Intelligencer Journal, the Lancaster New Era and the Lancaster Sunday News.

The news organization sought to quash that subpoena, but a judge declared Lancaster Newspapers to be in contempt of court and levied a $1,000-a-day fine for failure to turn over the additional hard drives. The Pennsylvania Supreme Court, however, temporarily halted the daily fines while it considered the case.

What makes this case especially relevant to Police Blotter is that journalists' hard drives contain far more data than just history files showing what pages were visited in a Web browser. They'll likely be brimming with conversations with confidential sources, memos from editors about internal and sensitive newsroom procedures, and lists of phone numbers and e-mail addresses that are intended to be private. Many states, including Pennsylvania, have shield laws that protect confidential sources for precisely that reason.

But instead of asking the newspaper to turn over only its browser logs, Corbett and his aides have demanded the entire hard drives.

For its part, Lancaster Newspapers cited the First Amendment to the U.S. Constitution, the First Amendment Privacy Protection Act and the Pennsylvania Shield Law in objecting to the subpoena, saying it was akin to turning over to the attorney general an entire set of newsroom file cabinets.

The Pennsylvania Supreme Court agreed. The majority opinion said the "unavoidable effect is that the essential 'filing cabinets' of the newspapers are transferred to the custody and control of the executive branch of government."

It added, "We recognize the concern on the part of the attorney general that the office is attempting to gather and secure evidence, and the hard drives themselves may in fact be the best evidence available concerning the matters subject to investigation. In this regard, however, and in the present status quo, we believe that any direct and compelled transfer to the executive branch of general-use media computer hardware should be pursuant to a due and proper warrant, issued upon probable cause."

Nowhere in the court documents did it say whether the newspaper reporters used encryption, which would have added another legal wrinkle. PGP sells a whole-disk encryption product for Windows ($119 for home use), and Apple's OS X operating system includes File Vault, which completely encrypts a home directory.

In addition, Microsoft's forthcoming Windows Vista will include BitLocker Drive Encryption that the company says will not include a backdoor for police. Whole-disk encryption options are also available for Linux.

Excerpts from Justice Ronald Castille's dissenting opinion: The majority apparently finds that Subpoena 686 is unconstitutional as a matter of law because there were other, more limited means by which the grand jury could obtain the information it sought. The majority also finds that the safeguards adopted by the supervising judge were insufficient, as a matter of law, to survive a constitutional challenge. In my view, this Court should defer to the supervising judge's assessment of this issue as well, which was not an abuse of the substantial discretion necessarily vested in his control over the grand-jury proceedings.

In overturning the supervising judge's order, the majority does not specifically identify whether it bases its decision on a particular ground raised by Lancaster Newspapers (the "newspapers"), all of their constitutional and statutory arguments or some combination thereof. The fact that the majority's ultimate dispositive analysis adverts to a potential chilling effect and overbreadth, however, suggests that the decision is powered by First Amendment concerns. As actual authority for overturning the trial court's order, the majority cites only to a single-judge opinion from the Southern District of New York, which of course is not binding on this court.

Moreover, it does not appear that that decision involved constitutional concerns, much less was it powered by constitutional authority which would bind this court. Particularly given the truncated nature of the proceedings and pleadings before the court in the case sub judice, which has been treated as an emergency, I am not inclined to elevate the view of a single federal trial judge in a different circuit to the status of constitutional command, by which we must measure the discretionary decisions of Pennsylvania judges supervising grand-jury proceedings.

The supervising judge limited the attorney general's search of the hard drives to Internet history and cached content of the hard drives. Neither of these types of information is protected by any of the privileges claimed by the newspapers--a point the newspapers conceded below. The newspapers' objection instead related to information on the computers that is not being sought by the commonwealth. The newspapers professed a fear that the commonwealth would abuse the subpoena and seek to access other information that might be subject to some constitutional or statutory protection.

I see no abuse of discretion in the safeguards adopted by the supervising judge in response to the newspapers' professed concerns. The court was not obliged to assume that the attorney general's representatives--officers of the court--would ignore the limitations of the subpoena and the judge's expressed concerns, and nefariously rummage about in the hard drives for information which was not the subject of the investigation.

Nor do I believe that the court was obliged to assume that the attorney general's information technology professionals would seek to subvert the court's imposed restrictions and plan of action. I also do not believe that the Constitution obliged the court to appoint some outside, "neutral" expert to perform an investigative function which is one of the core duties of the Attorney General's Office.

Finally, in my mind, the fact that the subpoena could be narrower and more to the liking of the newspapers does not render it unconstitutional. Because I would find that the newspapers failed to prove that the subpoena, as narrowed and framed by the supervising judge, was unreasonable or constitutionally improper, I would not interfere with the court's exercise of discretion and seek to micromanage this grand jury. Hence, I respectfully dissent from the court's vacatur order.