RCFP analysis: Court orders FBI to expunge website records under Privacy Act | WHAT REALLY HAPPENED

RCFP analysis: Court orders FBI to expunge website records under Privacy Act

In late November, a judge for the U.S. District Court for the Northern District of California directed the Federal Bureau of Investigation to expunge certain records relating to Eric Garris, an editor of the website Antiwar.com, which describes itself as promoting “non-interventionism” and posts related news and opinions.

The move comes after the U.S. Court of Appeals for the Ninth Circuit held in September that federal law prohibits law enforcement agencies from maintaining records describing First Amendment activity, unless the record “is pertinent to and within the scope of an ongoing law enforcement activity.” The case marked the first time the Ninth Circuit has considered that question.

Garris v. FBI involved the FBI’s collection and maintenance of records on the editors of Antiwar.com. The site’s editors and co-founders, Garris and Justin Raimondo, challenged the bureau’s preservation of records describing their work and sought to have the records expunged under the Privacy Act of 1974. The court of appeals agreed with their arguments related to a detailed post-9/11 “threat assessment” memorandum, noting that the FBI did not demonstrate that the memo at issue was “pertinent” to ongoing law enforcement activity.

This decision may be significant in light of recent high-profile examples of government efforts to monitor journalists based on newsgathering activity. In May, for instance, the Reporters Committee joined a group of 103 organizations that signed a letter to the then-acting secretary of the U.S. Department of Homeland Security raising concerns over reports of surveillance activities by U.S. Customs and Border Protection and Immigration and Customs Enforcement. The letter called for an end to the practice, warning that surveillance of journalists may violate the Privacy Act and infringe on the rights of the press.

The court’s decision to clarify what is permissible under the Privacy Act is also notable given the history of the law.

Webmaster's Commentary: 

To our peace-centric brothers and sisters at antiwar.com, bravo, well done!!

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