Fourth Circuit narrows government request for journalists’ LinkedIn records

The Fourth Circuit attempted to strike a balance between the need to protect national security and the need to protect the free press.RICHMOND, Va. (CN) — The Fourth Circuit instructed a lower court Tuesday to narrow the amount of journalists’ records LinkedIn must turn over for an investigation.​The government sought and received a pair of orders to aid an investigation into the leaking of highly confidential military information to an unnamed news outlet.​A lower court first granted the government’s request for a sweeping disclosure order under the Stored Communications Act requiring LinkedIn to produce records of journalists’ messages with confidential sources. The government sought journalists’ metadata records from an 18-month period, including their conversations with sources.​The lower court also granted a secrecy order that prohibited LinkedIn from telling its users about the disclosure for one year. U.S. Circuit Judge Harvie Wilkinson, a Ronald Reagan appointee, ruled that the orders were too broad.​"It is part of the audacity of the American project to believe that collective security can coexist with individual freedom," Wilkinson said. “While we respect the government’s interest in gathering information potentially relevant to the leak, neither the Stored Communications Act nor the Constitution permit the district court to approve orders that, by all apparent indications, are substantially overbroad.”​Wilkinson disagreed with the government’s argument that LinkedIn failed to identify an injury. Wilkinson reasoned that the orders may cause the platform reputational and financial harm.​"Confidentiality of sources is the lifeblood of a free press," Wilkinson said.​Over a billion people use LinkedIn, including 94% of American journalists, according to a 2022 Pew Research Center survey.​"Through the aid of LinkedIn, a journalist and source can therefore find each other and exchange extensive information without ever establishing any publicly visible connection," Wilkinson said. “Without the ability to communicate privately that LinkedIn offers, that would be impossible.”​The court sealed many details of the investigation, including which news outlet shared the confidential information. The government described the subject article as revealing a top-secret United States military operation in a foreign country. The government’s attorney, Joshua Ferrentino, described the investigation as unusual during a September hearing.​Wilkinson denied LinkedIn’s motion to quash the disclosure order in its entirety. Wilkinson emphasized the life-and-death nature of the confidential information the news outlet shared.“Leaks of classified materials can transmit highly sensitive information to our adversaries in areas in which stealth is essential,” Wilkinson said. “Such leaks can also place in greater danger the lives of the men and women working in covert operations to protect our country.”​Still, Wilkinson acknowledged the role the press plays in American society.​"When a free press reports on the operations of government, it will often be the case that reporting exposes matters that the government might wish undisclosed, either to save itself from embarrassment or because it simply prefers to have its actions unexamined," Wilkinson said. “This does not confer upon government the right to silence.”​LinkedIn moved to narrow the secrecy order so it could inform a lawyer for the news outlet of the disclosures. A magistrate judge denied the motion to modify the orders, ruling that the Stored Communications Act allows platforms to challenge orders only on logistical grounds. The magistrate judge further ruled that the government’s request was not overbroad because it is typical that records requests encompass some records unrelated to the criminal investigation.​"While some degree of overbreadth may be inevitable, the SCA and the Constitution require the district court to analyze the degree of overbreadth and trim the more far-fetched reaches of the government’s records request," Wilkinson said.​Attorneys representing LinkedIn and the government did not return a request for comment. U.S. Circuit Judges Andrew Wynn, a Barack Obama appointee, and Nicole Berner, a Joe Biden appointee, concurred with Wilkinson.Subscribe to our free newslettersOur weekly newsletter Closing Arguments offers the latest about ongoing trials, major litigation and rulings in courthouses around the U.S. and the world, while the monthly Under the Lights dishes the legal dirt from Hollywood, sports, Big Tech and the arts.Additional Reads