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Port: 'It makes me physically nauseous the extent to which they were pursuing a journalist'

A school official frustrated with a reporter's coverage was able to convince a law enforcement agent to launch an investigation that included seizing that reporter's phone so she could comb through all the personal and professional information on it. That shouldn't have happened, and it cannot happen again.

Attorney General Wayne Stenehjem. File photo.
Attorney General Wayne Stenehjem. File photo.
Dave Wallis / The Forum
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MINOT, N.D. — A week ago I wrote about Tom Simon , a Williston-based reporter who had his cellphone seized by a North Dakota Bureau of Criminal Investigation agent.

The agent was investigating Simon for reporting on what was discussed in closed meetings of the Williston School Board. Simon has sources that put him in the know, and at this point I'm not aware of anyone making any substantive criticisms of the content of his reporting.

Instead the BCI, at the behest of school board leadership, launched an investigation into an alleged felony related to the disclosure, by a public official, of confidential information.

"They do this in China," Simon told me this week of the ordeal.

"It makes me physically nauseous the extent to which they were pursuing a journalist," he added.

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I can now share with you a copy of the warrants obtained by BCI Agent Charissa Remus. One hugely expansive warrant was for Simon's phone and pretty much everything on it (I'm not exaggerating, read the warrant in detail below) and the other was for his phone records from Verizon, his service provider, and each was supported by an affidavit from Remus that made it clear she was fully aware that Simon is a reporter.

That's the whole point of her investigation. She wants to know who Simon's sources are. Thus her warrant, which a judge signed off for.

But there was a problem with the warrant. North Dakota Century Code section 31-01-6.2 states that there must be a hearing before law enforcement can seize information from a reporter.

As you can see from the warrants and related documents above, there was no hearing given to Simon. He told me Remus demanded to know his sources, and when he wouldn't provide them, Remus got a warrant and took his phone.

Later, when it became clear the BCI and Northwest District Judge Benjamen J. Johnson, who signed off on the warrants, had ignored the law, Remus sent a frantic fax to Verizon to ask them to disregard the warrant.

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How did this happen?

"Agent Remus followed the usual procedures, working with and at the direction of the county state’s attorney’s office (the prosecuting attorney’s office), in conducting her preliminary investigation and then in preparing, drafting, and submitting the Affidavit for the Search Warrant," Liz Brocker, spokesperson for Attorney General Wayne Stenehjem's office, told me. "She obtained the phone pursuant to a valid search warrant."

Except, it wasn't a valid search warrant. Not when she executed it, which was before Simon was afforded the hearing which the law guarantees him.

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Brocker told me Remus wasn't aware of that law when she executed the warrant. "However, to her credit, Agent Remus sought further legal guidance from this office before taking any further action, and as a result, the phone was returned without having been opened and none of the information contained in the phone was obtained or viewed by law enforcement," Brocker said.

She told me that BCI agents, and law enforcement personnel across the state, will receive training on this law in the future.

"This is the first time we are aware of since the statute took effect that there has been an issue," Brocker said.

"Moving forward, all current BCI agents will be provided with instruction regarding this statute, and thereafter it will be part of the basic training for our BCI agents. In addition, we will incorporate training on this statute in our presentations at the Law Enforcement Training Academy (which all ND Peace Officers attend for licensing), and the Peace Officer Standards & Training Board program. We also will encourage the County State’s Attorneys to review the statute with the law enforcement agencies in their jurisdiction," she added.

Agent Remus won't face any specific discipline for the error.

The news that the Attorney General's Office is taking this seriously is good to hear.

As for Simon, he told me that, as far as he knows, the BCI seems to be dropping the investigation entirely. I think it can be argued that it shouldn't have started in the first place.

"The real story here is about the dysfunctional Williston School Board and how it got the state’s attorney or city attorney to get the state’s highest and premier law enforcement agency involved in such a minor incident," said Jack McDonald, an attorney for the North Dakota Newspaper Association. "And why BCI would even do this? It has nothing better to do? Really? It’s almost — but not quite — like the famous U.S. Supreme Court case involving the Pentagon Papers and the NY Times. It seems like a big case of overkill."

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It does, and while it may be tempting to dismiss this situation as a small error quickly corrected, it has a chilling effect on the ability of the news media to give the public a peek behind the curtains of government.

Again, a school official frustrated with a reporter's coverage was able to convince a law enforcement agent to launch an investigation that included seizing that reporter's phone so she could comb through all the personal and professional information on it.

That shouldn't have happened, and it cannot happen again.

Opinion by Rob Port
Rob Port is a news reporter, columnist, and podcast host for the Forum News Service. He has an extensive background in investigations and public records. He has covered political events in North Dakota and the upper Midwest for two decades. Reach him at rport@forumcomm.com. Click here to subscribe to his Plain Talk podcast.
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