Project Veritas Scandal Sparks Scrutiny of Federal Courts’ Secret Spying Warrants

The recent covert seizures of Project Veritas emails has led to new criticism from conservatives and civil rights groups alike of law enforcement’s use of Big Tech companies to spy on the communications of journalists and media organizations.

The Trump-era Department of Justice, which was investigating the theft of Ashley Biden’s diary during the 2020 election campaign, forced Microsoft to turn over emails from nine accounts associated with Project Veritas, according to court filings from the project that Microsoft confirmed.

Project Veritas, an investigative reporting project led by James O’Keefe and known for its controversial sting operations over the years, claims the government spying on it using gag orders is an infringement of the First Amendment and retribution for O’Keefe’s investigations.

“We’ve been critical of the Justice Department and the federal government under various administrations through our reporting, and now they’ve violated our First Amendment rights,” O’Keefe said in an interview with the Washington Examiner.

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Microsoft has repeatedly said it is too easy for the federal government to surveil the public’s emails, texts, and other data hosted by tech companies by abusing gag orders and warrants.

One of the biggest email and cloud-computing companies in the world, Microsoft receives as many as 10 secret gag orders per day to access user data and up to 3,500 per year, accounting for as much as a third of all law enforcement requests the company receives.

In another example, the Justice Department in the past two years under Presidents Donald Trump and Joe Biden waged a secret legal battle to obtain the Google email logs of four New York Times reporters to hunt for their sources. The Justice Department also secretly obtained two months of Associated Press reporters’ and editors’ telephone records in 2012.

Such government behavior is also exemplified in the case of James Rosen, a former Fox News reporter, who, in 2010, had his personal emails targeted by a secret DOJ search warrant in a leak investigation related to North Korea.

Eric Holder, the attorney general at the time, said he regretted the way he handled Rosen’s search warrant.

Digital privacy advocates say the legal justification used by law enforcement for gag orders has been watered down and that they are used frequently now, rather than in special circumstances as originally intended.

“There’s a high likelihood there are a bunch of other government gag orders because they have no end date and the tech companies can’t talk about them, so we just don’t know how big or rampant this problem is,” said Aaron Mackey, a senior staff attorney focused on surveillance and privacy issues at the Electronic Frontier Foundation, a nonprofit digital rights group.

“There’s a basic transparency problem. We rely so heavily on tech platforms to do daily communications, and the government takes advantage of this reliance on [platforms] and creates all these surveillance problems,” said Mackey.

Mackey added that the tools used by the federal government and law enforcement have been baked into the law and that the public should reconsider whether these laws are fair or should be changed.

The House Judiciary Committee earlier this month introduced a bill, the NDO Fairness Act, that would reform the laws around government surveillance and make it significantly more difficult to grant gag orders, thereby limiting the scope for abuses.

Conservatives argue the government’s spying on Project Veritas was politically driven.

“What makes the Project Veritas case extraordinary is the blatant political nature of the DOJ’s investigation. We’re talking about mobilizing federal law enforcement over a diary,” Indiana GOP Rep. Jim Banks texted the Washington Examiner.

“This only happened because the diary may well include damaging information about the president,” said Banks.

Project Veritas said there is a double standard for conservatives when it comes to secret gag orders.

“The federal government granted Google the ability to tell the New York Times privately that they were being surveilled, but James and Project Veritas never got that courtesy because they’re not left leaning,” said Paul Calli, outside counsel for Project Veritas.

Privacy advocates say the FBI and law enforcement agencies have been deploying secret gag orders using tech companies for many years using the rationale that those under investigation would flee, destroy key evidence, or be uncooperative if they were informed of the government’s digital search warrants.

There appears to be bipartisan support to stop the federal government from having such powers, the advocates say, but law enforcement has stymied such efforts.

“I think the bipartisan push to change search warrant laws is underreported. It’s significant, but there are still not enough votes to get it over the line,” said Greg Guice, head of government affairs at Public Knowledge, a tech policy and privacy advocacy group.

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“Law enforcement says it is an important tool to have, and [Congress is] swayed by that on both sides of the aisle,” Guice said. “There’s bipartisan opposition to changing the law as well.”