Still a crook any way you look
In October, Texas Attorney General Ken Paxton subpoenaed 404 Media, demanding that we hand over confidential information about our reporting and an anonymous source to help the state of Texas in a wholly unrelated case it is pursuing against Google. This subpoena undermines the free and independent press. It also highlights the fact that the alarm bells that have been raised about legal attacks on journalists in a second Trump administration are not theoretical; politicians already feel emboldened to use the legal system to target journalists.
Paxton’s subpoena seeks to turn 404 Media into an arm of law enforcement, which is not our role and which we have no interest in doing or becoming. And so Friday, our lawyers vociferously objected to Paxton’s subpoena.
Paxton is seeking 404 Media reporting materials and documents related to an internal Google privacy incident database that 404 Media reported on in June. He has demanded these documents as part of a broader lawsuit against Google that claims the company has violated a Texas biometric privacy law that has nothing to do with 404 Media. Specifically, the subpoena demands the following:
“Any and all documents and communications relied on in the ‘Google Leak Reveals Thousands of Privacy Incidents’ article authored by Joseph Cox.
Any and all documents and communications considered when drafting the [article]
All unpublished drafts of the [article]
A copy of the ‘internal Google database which tracks six years worth of potential privacy and security issues obtained by 404 Media.’”
At the time, we did not publish the full database because it contains the personal information of potentially thousands of Google customers and employees, and cannot be reasonably redacted. The subpoena threatens to hold us in contempt of court if we do not comply with its subpoena.
Friday, our lawyers objected to the subpoena on the grounds that it is “oppressive” and because our confidential reporting is protected under the California Shield Law (404 Media is incorporated as Dark Mode LLC in the state of California). “The information and materials sought by the Subpoena are absolutely protected from compelled disclosure by the California Shield Law,” our attorneys wrote. “Dark Mode further objects to the Subpoena on the grounds that it calls for the disclosure of unpublished information that is independently protected from compelled disclosure under the First Amendment to the United States Constitution and Article I, Section 2(a) of the California Constitution.”
Simply put: If Ken Paxton wants Google’s privacy incident database, he should get it directly from Google, not from us.
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Paxton’s subpoena highlights the urgency of passing the PRESS Act, a federal shield law that has already passed the House and which has bipartisan support but which Democrats in the Senate have dragged their feet on for inexplicable and indefensible reasons. The PRESS Act would prevent the type of frivolous and inappropriate legal action Paxton is pursuing from the federal government, which is particularly important considering that FBI Director nominee Kash Patel has promised to “come after” journalists “criminally or civilly.” Attacking press freedom doesn’t always mean the government will directly sue journalists and news organizations. It can also, as Paxton has chosen to do here, demand information from them in an attempt to embroil them in wholly unrelated and costly legal proceedings, and to hold them in contempt of court when they choose not to commit professional and ethical suicide.
I was aware of the lawsuit, which may have merit, but my operating assumption is that everything Ken Paxton does is bad unless proven otherwise. For obvious reasons, I would like to see him get denied on this motion. 404Media is a subscriber-based investigative site that focuses on tech, AI, the Internet, that sort of thing, and they do some really fascinating work. Check them out, and read the rest of the post.