New Brunswick may have violated federal law with journalist search warrant

New Brunswick officials hoping to cover up evidence of corruption in the city’s water utility may have violated federal law by sending police with a search warrant to the office of a local journalist.

The Privacy Protection Act of 1980 requires federal, state, and local authorities either to use subpoenas-with advance notice and the opportunity for a court hearing—instead of search warrants when they seek reporters’ materials as evidence.

The law was passed after three US Supreme Court objected to a majority decision that reviewed a California police department’s use of a warrant to search the office of a student newspaper at Stanford University.

The lower courts held that whatever the rule might be generally with respect to searches where a party isn’t suspected of crime, that a subpoena duces tecum should be used when the third party is a newspaper, that is when the premises to be searched is occupied by a newspaper.

A video posted to YouTube shows two New Brunswick police at the office of New Brunswick Today editor Charlie Kratovil.

Kratovil broadcast a livestream show on Facebook in which he showed a water meter and officials subsequently said it was stolen from the city.

Judge Colleen Flynn approved the search warrant, resulting in a series of events that ultimately led to a pushback against the city from citizens, journalists and organizations that support them.

“It is the nature of journalism that reporters sometimes receive leaked information. Sometimes that material is illegally obtained by a third party. However, that does not make it illegal for journalists to use it,” explained the non-profit NJ Society of Professional Journalists (NJ-SPJ).

The organization, which earlier this year awarded New Brunswick Today its prestigious Awbrey Award for Community-oriented Local Journalism for our coverage of the Water Utility, issued a public statement “strongly” objecting to the warrant:

Perhaps the most famous example of leaked information obtained by a third party is The Pentagon Papers. In that landmark 1971 case, the U.S. Supreme Court upheld the right of The New York Times to publish a classified military report about American involvement in Vietnam that had been provided to the newspaper by a military-analyst-turned-whistler-blower named Daniel Ellsberg. The revelations helped turn public opinion against the war.

In the New Brunswick case, the “leaked information’’ is an old water meter. By calling the old water meter “stolen property,’’ the New Brunswick police found a pretext that allowed them to use the court system to muzzle Kratovil.

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