Judge rejects DOJ request to search Washington Post reporter’s electronic devices

A federal judge in Virginia ruled on Tuesday that the court — not the U.S. Justice Department — would conduct a review of electronic devices that the government seized from a Washington Post reporter to determine whether they contain evidence in an investigation into the unauthorized disclosure of national defense information. 

In a 22-page decision, Judge William B. Porter of the U.S. District Court for the Eastern District of Virginia rejected the Justice Department’s request to search reporter Hannah Natanson’s phone, laptops, and other devices. Federal agents seized the devices last month during an unprecedented raid on the journalist’s home as part of an investigation into a government contractor who has been charged with illegally transmitting and retaining national defense materials.

The judge suggested that the government could not be trusted with an “unsupervised, wholesale” search of Natanson’s devices. He also scolded Justice Department officials for failing to inform him in its warrant application about a federal law that prohibits, with few exceptions, raids targeting journalists or newsrooms to seize unpublished work — and for failing to mention that Natanson was not a target of their investigation. 

“Given the documented reporting on government leak investigations and the government’s well-chronicled efforts to stop them, allowing the government’s filter team to search a reporter’s work product — most of which consists of unrelated information from confidential sources — is the equivalent of leaving the government’s fox in charge of the Washington Post’s henhouse,” Judge Porter wrote in his opinion. 

Gabe Rottman, vice president of policy at the Reporters Committee for Freedom of the Press, made the following statement:

“The court had a choice between carefully protecting a reporter’s confidential sources and simply letting the government rifle through Natanson’s devices. It made the right call — and the constitutionally appropriate one — by taking it upon itself to review the material and in ordering that information unrelated to the underlying investigation will be returned to Natanson. The judge was also clearly frustrated by the government’s failure to disclose the protections due Natanson under the Privacy Protection Act, an omission that may cloud this case going forward.”

The judge’s ruling is an important victory for Natanson and The Post — and for press freedom more broadly. Natanson, who covers the federal workforce, has been involved in high-profile coverage of the Trump administration’s overhaul of the federal government, which means her devices would potentially contain a lot of sensitive communications with government sources, including a trove of material unconnected to her communications with the alleged leaker at the center of the underlying criminal case. 

After the raid, both Natanson and The Post asked the court to order the government to return the property seized from Natanson’s home or, at the very least, return the materials that are beyond the scope of the search warrant. The Reporters Committee filed a friend-of-the-court brief in support of their request, arguing that the ongoing seizure of Natanson’s records violates the First and Fourth Amendments and the Privacy Protection Act of 1980, which created essential protections for journalists and newsrooms from government searches and seizures. 

In his ruling, Judge Porter wrote that the government should retain only information related to the search warrant — “and nothing more.” He concluded that the task of filtering out unrelated information to return to Natanson would best be handled by the court itself, rather than the government. 

“The concern that a filter team may err by neglect, by malice, or by honest difference of opinion is heightened where its institutional interests are so directly at odds with the press freedom values at stake,” the judge wrote.

Judge Porter’s opinion called out the Justice Department for its failure to mention the Privacy Protection Act in its warrant application. The omission, which the judge called a “matter of significant concern,” was revealed after the Reporters Committee successfully sought to unseal the search warrant affidavit that provides the FBI’s sworn statement justifying its request to search Natanson’s home. 

The judge said that he was not aware of the law — searches involving the press are extremely rare, he pointed out — and suggested that, had the government mentioned it, the court may have rejected the warrant application and instead directed the government to issue a subpoena. “At the very least,” he wrote, “it would have asked more questions.”

Judge Porter also expressed frustration that the government failed to tell the court that Natanson was not a target of its investigation. 

“The government expressly alleged that Ms. Natanson received classified information from Mr. Perez-Lugones, and its intent towards her was unclear,” the judge wrote. “The Court learned that Ms. Natanson was not a focus of the investigation only through press reports published the day the warrant was executed.”

Judge Porter said he would consult with both parties to develop a process for the court’s independent review. A hearing is scheduled for March 4.