The search warrant for a Washington Post reporter’s computers, phone, and files violated the Privacy Protection Act because it was not evidence of a crime or contraband. It also implicates prior restraint on speech. The USMJ’s order that the court will review in camera what was seized is affirmed. In the Matter of the Search of the Real Property and Premises of Natanson, 1:26-sw-00054 (WBP-AJT) (E.D. Va. May 5, 2026):
The Government’s expansive view of what is permissible under the Fourth Amendment entirely disregards Natanson’s rights under the PPA and the First Amendment, which “entitle[s] news reporters to some constitutional protection of the confidentiality of their sources.” Ashcraft v. Conoco, Inc., 218 F.3d 282, 287 (4th Cir. 2000) (‘’Such protection is necessary to ensure a free and vital press, without which an open and democratic society would be impossible to maintain.”); Rossignol v. Voorhaar, 316 F.3d 516, 521 (4th Cir. 2003) (holding that Sheriff Department’s “seizure” of a newspaper “clearly contravened the most elemental tenets of First Amendment law”); Media Matters for Am. v. Paxton, 138 F.4th 563, 580 (D.C. Cir. 2025) (“[B]ad faith use of investigative techniques can abridge journalists’ First Amendment rights.”); Roaden v. Kentucky, 413 U.S. 496, 501-05 (1973) (the Fourth Amendment “must not be read in a vacuum” and should be considered against the protections of the First Amendment); see also Marcus v. Search Warrants of Prop, at 104 E. Tenth St., Kansas City, Mo., 367 U.S. 717, 729 n.22 (1961) (“[W]here there is even a charge against one particular paper, to seize all, of every kind, is extravagant, unreasonable and inquisitorial. It is infamous in theory, and downright tyranny and despotism in practice.”).
Although a reporter’s privilege “is not absolute and will be overcome whenever society’s need for the confidential information in question outweighs the intrusion on the reporter’s First Amendment interests,” the Fourth Circuit has instructed district courts to conduct the following three-part balancing test in weighing these interests and determining whether that reporter’s privilege can be overcome under the Fourth and First Amendments: “(1) whether the information is relevant, (2) whether the information can be obtained by alternative means, and (3) whether there is a compelling interest in the information.” 218 F.3d at 287 (citation omitted). The Government argues that the search warrant clearly authorized a search for documents and infomiation “relevant” to its law enforcement duties, namely “classified and/or national defense” materials during a specified time period relating to Perez-Lugones, see [Doc. No. 4] at 4, and therefore, “the warrant impliedly authorized officers to open each file on the computer and view its contents, at least cursorily, to determine whether the file fell within the scope of the warrant’s authorization[,]” even if that information exists among a large swath of information that is unresponsive to the search warrant. [Doc. No. 74] at 17 (citing United States v. Williams, 592 F.3d 511, 521 (4th Cir. 2010)). But here, the only documents “relevant” to the Government’s efforts in investigating Perez-Lugones’ alleged criminal conduct may be as few as a handful of documents, while the non-responsive “irrelevant” newsgathering materials constitute over one thousand documents; and there is no compelling interest in the Government’s reviewing these irrelevant documents if there is an alternative means to identify relevant documents, namely, judicial review. Although it is conceivable that the Government, under certain circumstances and conditions, may be authorized to conduct a search of Seized Material that includes First Amendment or PPA protected documents, the Government has not cited, and the Court has not identified, any case with a seizure comparable in scope and content to the one in this case.
. . .
Government contends that, given the presence of classified information, the Magistrate Judge’s exercise of that core judicial function is inconsistent with the separation of powers since (1) a judicial review would intrude on the Executive’s duty to enforce the laws; (2) the Court is ill-equipped to determine what is classified; and (3) the Court’s review “creates the chance for unauthorized and unintended dissemination of classified material.” [Doc. No. 94] at 6. None of these arguments counsels against judicial review in this case.
As to the first concern, the Government contends that unlike in those cases where judicial review was authorized, including Baltimore Law Firm, the Magistrate Judge, in deciding to conduct a judicial review of the seized material, became, in substance, “a member, if not the leader, of the search party which [is] essentially a police operation,” and therefore exceeded his role as a judicial officer and invaded the exclusive province of the Executive Branch. See Doc. No. 74 at 11 (citing Lo-Ji Sales, Inc. v. New York, 442 U.S. 319 (1979)). But unlike the judicial officer in Lo-Ji Sales, Judge Porter played no role in the execution of the search warrant or deciding what objects and materials the Government seized in execution of the warrant, and the role he has assigned to himself is no different, in substance, than the role assigned to the magistrate judge by the Fourth Circuit in Baltimore Law Firm. That the materials to be reviewed in this case are in electronic storage and need to be accessed through some process does not transform the Magistrate Judge into a member of the Government’s team that executed the search warrant and seized the objects that contain the materials to be reviewed, just as it did not transform the role of the magistrate judge in Baltimore Law Firm. And in substance, the judicial review of the Seized Material in this case will be no different than the judicial review ol the content ot voluminous documents initially presented to a court in hard copy, particularly where in today’s legal environment those documents would typically be downloaded into a database.
The Government also contends that given the classified nature of responsive documents, the Court lacks the requisite expertise to identify those responsive documents. The responsive documents here are subject matter specific documents well within the ability of the Magistrate Judge to identify, not only with the help of the Government, Natanson and the Washington Post, but also in light of the likely non-classified nature of some of the responsive documents, such as the news articles published and communications between Natanson and Perez-Lugones. In that regard, the Government has been ordered to propose a process for that review, presumably reflecting the process it would use, including “a list of proposed non-confidential search terms” and “confidential search terms,” the latter of which may be provided to the Court ex parte. [Doc. No. 109]. Those procedures are not before the Court but to the extent that the Government believes those procedures do not adequately identify and protect responsive documents, those issues can be presented to the Court.
The Government’s final argument is that a judicial search is logistically unworkable due to the “difficulties” a judicial review would face, such as determining “the best place, platform and technology for review.” [Doc. No. 74] at 15. It is unclear is why these “difficulties’’ would be any different for the Government than the Court. But more to the point is that the Court is often called upon to review classified information, often voluminous, without being stymied by issues pertaining to “the best place, platform and technology for review.
