The Justice Department (DOJ) sought a warrant in 2010 to inspect the private emails of Fox News correspondent James Rosen, according to court documents obtained by the Washington Post and which were released Monday. The department calls Rosen "an aider and abettor and/or co-conspirator" to the leaking of classified materials, in its application for a search warrant, which was approved by a U.S. magistrate judge in May 2010.
The revelation that the DOJ would classify a journalist as an un-indicted co-conspirator under the 1917 Espionage Act is "even a bigger deal" than the department's seizure of Associated Press phone records, said Ben Wizner, director of the ACLU's Speech, Privacy and Technology Project.
"A line has been crossed that has always been a very critical bulwark," Wizner said to msnbc. "That's the line between government leakers and media publishers." No journalist has ever been prosecuted under the Espionage Act,which has traditionally "only been used against those who gave or sold secrets to the enemy."
The DOJ targeted Rosen because he allegedly received classified information from Stephen Jin-Woo Kim, a security adviser at the State Department. According to the DOJ affidavit, Rosen cultivated Kim as a source "[m]uch like an intelligence officer would run a clandestine intelligence source." But civil liberties advocates argue that Rosen was only doing what investigative reporters are supposed to do.
"Gathering information from sources is a basic tenet of good reporting, and criminalizing or threatening to criminalize the news-gathering process is a direct assault on the First Amendment and press freedom," said the Electronic Frontier Foundation's Trevor Timm, who also heads the Freedom of the Press Foundation. "We've been saying for years that this type of 'conspiracy to commit espionage' theory is incredibly dangerous for reporters."
Last week, the DOJ revealed that it had obtained two months' worth of the AP's phone records as part of a leak investigation. While the phone records acquisition was unprecedented in its scope, AP journalists were not accused of committing espionage. Nonetheless, the DOJ's investigations into both the AP and Fox News fit into a broader pattern of secrecy within the Obama administration.
Such aggressive tactics may have a chilling effect that will make it more difficult to reporters to inform the public, critics warn. On Sunday, AP's president and CEO said that sources had already become more reluctant to speak to his reporters since the news of the DOJ's phone record surveillance broke.
"Our democracy relies on unauthorized as well as authorized communication between government and the press," said Wizner. If reporters who print unauthorized leaks are going to be accused of espionage, "it doesn't mean there won't be conversations; it means only the official version will be transmitted."
Fox News executive vice president Michael Clemente roundly condemned the DOJ's tactics in a statement.
"We are outraged to learn today that James Rosen was named a criminal co-conspirator for simply doing his job as a reporter," he said. "In fact, it is downright chilling. We will unequivocally defend his right to operate as a member of what up until now has always been a free press."
At a Monday press briefing, White House spokesperson Jay Carney said he would not comment on an ongoing investigation.