Wired News reporter testifies in e-mail trial

Friday, April 16, 1999

A reporter for Wired News testified in a Tacoma, Wash., federal courtroom yesterday about his coverage of a man facing criminal prosecution for allegedly posting threatening e-mail about federal officials.

Last week, Justice Department officials subpoenaed Declan McCullagh, who covers Washington, D.C., for the online news site Wired News, ordering him to testify in U.S. v. Johnson. McCullagh agreed despite his objections.

“The protection journalists receive under the law seems to have eroded,” McCullagh said. “In a criminal case, there seems to be little we can do to avoid testifying about the cases we’re covering.

“That can have a chilling effect,” he said. “It also means that I’m now less likely to hold on to notes, which won’t help my coverage of follow-up stories in the future.”

Federal officials have charged Carl Johnson, a part-time musician and computer devotee, with threatening Treasury Department agents and obstructing justice. Prosecutors claim that Johnson posted at least three death threats on a “cypherpunks” listserv, an e-mail list devoted to encryption and code systems.

Johnson’s attorney, Gene Grantham, said the postings weren’t threatening but were satirical in nature. Grantham said many of Johnson’s messages have ranged from “Encrypted InterNet DEATH THREAT!!!” to “SPACE ALIENS HIDE MY DRUGS!!”

Such messages, Grantham contends, are clearly protected by the First Amendment.

McCullagh said Justice Department officials subpoenaed him because of a three-part series he wrote in 1997 for Time magazine’s online news service. McCullagh had interviewed Johnson and other members of the cypherpunks listserv for the articles.

The reporter said prosecutors already had forced him to turn over some documents when they subpoenaed him on April 9. He was scheduled to testify on April 12 but didn’t take the stand until yesterday.

A Justice Department spokesperson declined to comment about the Johnson case or about the subpoena, noting that the trial is in progress. The judge yesterday held testimony over until next week, but McCullagh said he wouldn’t be called back to the stand.

Because he was a witness in the case, McCullagh said he had been hampered in covering the trial. He wasn’t allowed inside the courtroom as an observer until he had finished testifying.

“At least I made the government work hard for this,” he said. “My lawyer made sure (U.S. Attorney General) Janet Reno personally approved this particular subpoena, which is required under [department] rules when a journalist receives one.”

But Jane Kirtley, executive director for the Reporters Committee on Freedom of the Press, says she worries that McCullagh didn’t try everything he could to fight the subpoena. Last month, her group released a report detailing how often news organizations submit to subpoenas rather than fight them.

As for forcing prosecutors to get Reno’s signature, Kirtley says that’s among the initial steps of fighting a subpoena, not the final ones.

“That’s step one,” Kirtley said. “If you can’t get out of it easily, you now go to the second step which is ‘Can you fight it at all?’”

McCullagh contends his attorney, a deputy counsel for Time, “fought the subpoena as much as possible. Her thinking was that because I started writing about the case after the defendant was arrested and there was no confidential source agreement, there was no way I could avoid testifying.”

But Kirtley said the 9th U.S. Circuit Court of Appeals, which includes Washington, “has some pretty good authority on protecting journalists who have been subpoenaed where confidential sources are not involved.”

Specifically, she mentioned the case of Shoen v. Shoen, which involved members of the family who own the U-Haul rental company and the murder of Eva Shoen.

In that case, an author of a book about the Shoen murder faced a subpoena requiring him to turn over notes and tapes of interviews with Eva Shoen’s husband. But the appeals court struck down the subpoena, noting that such an order cannot be served when information was available from other sources.

Kirtley warns that subpoenas are troublesome “because there are very real risks that the journalist will be perceived as having compromised his independence. It’s as simple as that. Why is that East Lansing, Michigan, paper fighting tooth and nail not to give up those photos of the rioters?”

“A real problem is the tremendous amount of power that federal prosecutors have,” McCullagh said. “We’ve trusted them not to abuse it, but I’m no longer sure that works.”