EXPLAINER: How is North Dakota shield law supposed to work?

January 21, 2022 GMT

FARGO, N.D. (AP) — The confiscation of a North Dakota reporter’s cellphone by a Bureau of Criminal Investigation agent has shined a light on the state’s 19-year-old shield law, which is aimed at protecting journalists from being forced to turn over notes and other information without a court hearing.

Reporter Tom Simon, who works for Williston Trending Topics News Radio Live, a Facebook outlet, and Coyote Radio 98.5, had his phone taken by agents who were looking for anonymous sources he quoted for a story on the Williston school board. No hearing was held.

North Dakota Attorney General Wayne Stenehjem, after he was contacted by North Dakota Newspaper Association Attorney Jack McDonald about the move, immediately ordered the phone returned to Simon.

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Here’s a closer look at the case and the shield law:

WHAT HAPPENED?

Simon, 62, has been covering a dispute involving the school board’s handling of the departure of the district’s former superintendent. Simon’s contacts were sought after Williston police initiated an investigation into leaks from the board’s executive session and enlisted help from the BCI.

At one such meeting last week, BCI Agent Charissa Remus asked Simon to move to a room to talk, at which time Simon said he was asked — and declined — to turn over sources. Simon said another agent confiscated his phone that he left on a table while Remus gave him a search warrant signed by Judge Benjamen J. Johnson. The warrant said an affidavit by Remus declared that information on Simon’s phone likely contained evidence of a crime.

The affidavit by Remus identified Simon as a reporter and said Simon knew “specific and detailed confidential information which would have come from either a board member or from a recording from the executive session.”

A second warrant was signed by Johnson to search Simon’s Verizon Wireless records. The day Simon’s phone was returned, Remus wrote a letter to Verizon telling them to “PLEASE DISREGARD IMMEDIATELY.”

HOW DOES THE SHIELD LAW COME IN?

A bill passed in the 2003 Legislature is titled “Disclosure of news sources and information required only on court order.” The one sentence, 80-word text says information obtained by a journalist cannot be seized without a court hearing to determine if the “failure of disclosure of such evidence will cause a miscarriage of justice.”

McDonald said the law is meant to prevent intimidation of reporters who are gathering news. Nearly every state offers such protections, he said.

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“It’s important because it includes what the public will get for information,” McDonald said. “It’s important that the citizens know what is going on before so that they can respond and react to what’s happening in the Legislature, the city commission and in their life in general. That’s how a democracy works.”

Simons’ attorney, Kevin Chapman, said the shield statute involves constitutional amendments regarding freedom of the press and unreasonable searches and seizures of property.

WHAT DID THE STATE’S TOP LAW ENFORCER SAY?

Stenehjem was contrite about the mistake in an interview with The Associated Press last week and said that some people involved in the chain of events were unaware that Simon was protected by the shield law. He acknowledged that seeking a hearing to get a reporter’s information is “not a terrible imposition.”

However, Stenehjem said later in statement to other media outlets that the phone was “lawfully taken pursuant to a valid search warrant issued by a judge” and said he advised the agent of the statute and that it requires “a further court warrant to view the contents of the phone in cases like this.”

Liz Brocker, Stenehjem’s spokeswoman, would not forward follow-up questions and said only that the attorney general’s “statement is accurately reported.”

McDonald said the search warrant “probably” violated the law because the warrant allowed the agent to get the records before the hearing “rather than after the hearing as the law implies.”

Chapman said although he doesn’t fault the judge, the warrant was clearly a violation of the law and there’s nothing in the shield law about obtaining multiple warrants. He said in this case the warrant was “authorization to grab the phone and search it,” something the law is meant to prevent.

“This was not a situation where BCI was just holding the phone to determine whether to obtain a further warrant,” Chapman said. “If that was the case, there would have been no urgency to get the phone returned.”

WHAT’S NEXT?

Chapman said he is researching potential civil rights claims regarding constitutional violations, but would not say whether he and Simon plan to file any complaints. Simon said he directed Chapman to “look at every possible means” to ensure it doesn’t happen to another reporter.

“Tom’s rights were violated. Plain and simple,” Chapman said.

Meanwhile, the investigation against the school board for leaking information has been dropped.