By Claire Cahoon

Jason Leopold, a journalist ominously known to government officials as the “FOIA Terrorist,” is more familiar than most with rejection from the United States government. A 2018 Pulitzer finalist and industry-celebrated expert on the Freedom of Information Act, Leopold has filed more FOIA lawsuits than any journalistic entity except the New York Times, and usually, courts side with the government and refuse his requests for disclosure. A notable exception is a lawsuit he initially believed to be innocuous but resulted in the release of Hillary Clinton’s emails before the 2016 presidential election.

In 2013, Leopold ventured beyond his typical FOIA requests and filed a request for disclosure of materials related to pen registers, trap and trace devices, and Stored Communications Act (SCA) materials. The D.C. District Court (D.D.C.) left the matter virtually untouched until 2016, when U.S. District Judge Richard Roberts, facing allegations of sexual assault and predatory misbehavior, stepped down from the D.C.C. Judge Howell, Robert’s replacement, quickly picked the case up. Leopold, with support from the Reporters Committee for the Free Press, has spent the last two years negotiating the release of these materials with the US Attorney’s Office (USAO).

In the latest iteration of this saga, the D.D.C. incorrectly held that the Stored Communications Act does not create a First Amendment right of access to records related to SCA warrants in closed cases. To come to this conclusion, the court engaged in a misguided debate about whether an SCA warrant ought to be treated as a traditional warrant or a subpoena amended the SCA to create a framework for extraterritorial access to stored data. Even though the SCA specifically uses the term “warrant,” many courts make the argument that SCA warrants might not truly be warrants as an escape mechanism from the presumption against extraterritoriality. However, using this escape mechanism is dangerous when applied to First Amendment rights, as it gives the government unprecedented ability to search and seize information without ever disclosing the circumstances surrounding those seizures. The D.D.C. improperly applied Fourth Amendment analysis to the First Amendment issues presented by this case. Additionally, the Court wildly misinterprets the legislative intent behind the SCA and subsequent amendments, including the CLOUD Act.

In this case note, I examine In re Leopold in the context of the history of the SCA, implications of SCA extraterritoriality, recent amendments to the SCA, and relevant case law. Whether an SCA warrant functions more like a warrant or a subpoena has been examined extensively by the DC Circuit and other courts, but not in the context of right of access under the First Amendment.

 

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