Trump admin loses fight to spy on random journalists’ LinkedIn DMs

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LinkedIn fishing expedition

Confidential sources “lifeblood” of free press, court rules in LinkedIn fight.

The Trump administration’s fight to stop suspected leaks of top-secret military information on LinkedIn can’t sweep in “a vast number of confidential sources” of random journalists “who have no conceivable relationship” to the Department of Justice’s investigation, an appeals court ruled Tuesday.

The order came after the DOJ asked LinkedIn to turn over 18 months of communications from targeted journalists who collectively published more than 1,000 articles on many different topics over that time period. The request was not limited to journalists involved in a controversial report from a news outlet that Trump said exposed confidential military information in a foreign country. (The outlet is not being named to protect national security secrets.) Instead, the DOJ cast a wide net, requesting extensive LinkedIn data on journalists who had any possible link to the journalists around the time the report was drafted.

The majority of journalists have LinkedIn accounts and publish their contact information to encourage sources to connect on the platform, LinkedIn argued. So allowing that government overreach went beyond harming targeted journalists and threatened to undermine a critical platform where journalists frequently connect with confidential sources, judges ruled. Even more concerning, the Trump administration secured a secrecy order barring LinkedIn from telling anyone about the sweeping request for a year. That left journalists unaware for far too long that their First Amendment rights had been compromised, judges ruled.

Judge: Security and free speech can coexist

Penning the unanimous opinion from a three-judge panel, Ronald Reagan-nominated judge J. Harvie Wilkinson III rejected LinkedIn’s request to quash the order entirely and ordered the US district court to substantially narrow the order to avoid posing a grave threat to press freedoms.

Without such an intervention, the US risked silencing dissidents who raise alarms about “events of large importance and governmental behavior of dubious legality and integrity,” Wilkinson wrote. “A request by the government to scoop up reporters’ records wholesale and ascertain the identity of their sources would tip the balance against informed discourse in a manner inimical to democratic health.”

“Many of the users identified have no conceivable relationship to the leak investigation,” Wilkinson wrote. “Instead, they are affiliated with media outlets, universities, and law firms which may have been relevant to the host of other stories the targeted journalists were investigating during the same considerable time period.”

As Wilkinson explained, the district court failed to consider LinkedIn’s claims that the request imposed undue burdens and threatened the First Amendment rights of users who would have no way of knowing that their communications were being reviewed by the government. The lower court reasoned that the request imposed no burden on LinkedIn because the company could feasibly respond to it, then ruled that, regardless of how these matters were weighed, the balance would tip toward the government’s interest in obtaining the LinkedIn data.

This was an error that must be corrected, the appeals court ruled.

“It is not appropriate for district courts to approve requests purely because the records requested are logistically feasible to compile,” Wilkinson wrote. He further emphasized that “serious security and speech claims are in tension in this case. There is space under law for both.”

Press advocates celebrate win

The appeals court has ordered the district court to go back and assess how the disclosure order can be narrowed. That includes entertaining a very limited alternative to the government’s secrecy order that LinkedIn had proposed—which would have notified a single attorney of the news outlet under investigation about the government’s request.

The Trump administration fought that limited request, arguing that the news outlet’s attorney may not be trustworthy or could possibly tip others off to the LinkedIn probe, but Wilkinson rejected those arguments. Noting that the justice system often deals with “imperfectly informed litigants,” Wilkinson said that “the government should be given an opportunity to explain why LinkedIn’s narrow disclosure would somehow compromise its investigation.”

“Unless the government’s response to LinkedIn’s proposal is more persuasive than anything the government has presented thus far, LinkedIn’s narrow exception to the breadth of the Secrecy Order must be adopted,” Wilkinson wrote.

LinkedIn, which is owned by Microsoft, does not seem to expect the government to be able to defend the sweeping request on remand. While a narrowed order may not protect all irrelevant users from being caught in the government’s hunt for the military leaker, it would stop Trump from accessing a broad range of journalists’ interactions with confidential sources. In a statement, a Microsoft spokesperson told Ars that “this is an important ruling for the right to privacy and press freedom.”

“Microsoft has consistently defended journalists’ ability to protect confidential sources and the principle that government demands for information should face meaningful judicial scrutiny and be balanced against First Amendment protections,” Microsoft’s spokesperson said.

Several civil rights groups backed LinkedIn in the fight, including the Reporters Committee for Freedom of the Press (RCFP). In a statement to Ars, RCFP President Bruce D. Brown celebrated the ruling as a win for all journalists, not just those who rely on LinkedIn to connect with confidential sources.

“This ruling is a big deal and will quickly become one of the leading opinions in the area—one we will be quoting from it for a long time,” Brown said. “The court recognized that confidential sources are the ‘lifeblood’ of investigative reporting and that dragnet demands from technology companies to reveal those sources violate the law.”

Ashley is a senior policy reporter for Ars Technica, dedicated to tracking social impacts of emerging policies and new technologies. She is a Chicago-based journalist with 20 years of experience.

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