In an affidavit, an FBI agent told a federal magistrate that the reporter had committed a crime when he asked a State Department security contractor, Stephen Jin-Woo Kim, to share secret material about North Korea in June 2009.
The affidavit did not name the reporter, but Fox News identified him as its chief Washington correspondent, James Rosen. He was not charged, but Kim was indicted on espionage charges in August 2010 and is awaiting trial. He has denied leaking classified information.
The case marks the first time the government has gone to court to portray news gathering as espionage, and Fox News officials and 1st Amendment advocates reacted angrily Monday after the secret warrant was reported by the Washington Post.
"We are outraged to learn today that James Rosen was named a criminal co-conspirator for simply doing his job as a reporter," said Michael Clemente, Fox News executive vice president of news. "In fact, it is downright chilling. We will unequivocally defend his right to operate as a member of what up until now has always been a free press."
The development emerged days after the Justice Department notified the Associated Press that the agency used a subpoena last year to obtain phone company records for 20 telephone lines used by more than 100 reporters and editors in three cities. The subpoena was pursuant to a grand jury investigation of an alleged leak of classified information about an Al Qaeda plot to bomb a U.S. aircraft.
Neither Fox News nor the Associated Press was told in advance about the government actions or had a chance to challenge them in court, the usual practice. The government ordered Google not to disclose that it had given the FBI access to Rosen's Gmail account, and Chief Judge Royce Lamberth of the U.S. District Court for the District of Columbia confirmed in a September 2010 ruling that the government did not have to notify Rosen.
A federal statute, the Privacy Protection Act, normally bars the government from using a search warrant to seize a reporter's notes or communications as part of a broader criminal investigation. But the law allows an exception if the reporter is specifically accused of committing a crime.
"There is probable cause to believe that the reporter has committed or is committing a violation of [the Espionage Act] as an aider and abettor and/or co-conspirator," FBI Agent Reginald B. Reyes wrote in a May 28, 2010, application for a search warrant. "Because of the reporter's own potential criminal liability in this matter, we believe that requesting the voluntary production of the materials from reporter would be futile and would pose a substantial threat to the integrity of the investigation and of the evidence we seek to obtain by the warrant."
Alan Kay, the magistrate judge in Washington who signed the search warrant, was not available for comment, his office said Monday. The warrant and application were unsealed in November 2011, but they escaped public notice until now.
"It's hardly clear cut that it violates the 1st Amendment," said Geoffrey R. Stone, professor at the University of Chicago Law School and a 1st Amendment expert. "If in private discourse you try to persuade someone to commit a crime, you can be punished for doing so. The question here is whether the motive for doing it changes things."
No reporter has ever been charged under the Espionage Act, a 1917 law that criminalizes unauthorized disclosure of "national defense information" with intent or reason to believe the information "is to be used to the injury of the United States."
Rosen's role stems from his Fox News story on June 11, 2009, that "U.S. intelligence officials have warned President Obama and other senior American officials that North Korea intends to respond to the passage of a U.N. Security Council resolution this week — condemning the communist country for its recent nuclear and ballistic missile tests — with another nuclear test."
The story said the CIA had learned the information "through sources inside North Korea."
FBI agents subsequently determined that 95 people had authorized access to the highly classified intelligence that Rosen had cited. The FBI alleged that phone records, emails and other records showed Kim was in direct contact with Rosen.
"From the beginning of their relationship, the reporter asked, solicited and encouraged Mr. Kim to disclose sensitive United States internal documents and intelligence information … by employing flattery and playing to Mr. Kim's vanity and ego," Reyes wrote in his affidavit.
He said the reporter "instructed Mr. Kim on a covert communications plan ... to facilitate communication." The affidavit said they used nicknames in subsequent emails and asterisks as signals if Kim wanted to talk by phone.
"What makes this alarming is that 'soliciting' and 'encouraging' the disclosure of classified information are routine, daily activities in national security reporting," researcher Steven Aftergood wrote Monday on his Secrecy News blog. "The use of pseudonyms and discreet forms of communication are also commonplace. But for today's FBI, these everyday reporting techniques are taken as evidence of criminal activity and grounds for search and seizure of confidential email."