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Dr. Yanping Chen’s Privacy Act lawsuit against the FBI, DOD, DHS, and DOJ continues to press forward after recent, favorable rulings ordering reporter Catherine Herridge to disclose the government sources who leaked Dr. Chen’s information to Fox News.
The lawsuit (filed in 2018) seeks accountability from the federal government for selectively leaking to Fox News information about Dr. Chen gathered during an FBI investigation. After the investigation ended with no charges, former Fox News reporter Catherine Herridge published a series of reports that damaged the reputation of Dr. Chen and the University of Management and Technology, which Dr. Chen owns. Ms. Herridge’s reports notably displayed confidential materials from the FBI investigation, including personal photographs of Dr. Chen and her family, memoranda from FBI interviews, and Dr. Chen’s immigration and naturalization records.
Last year, after exhausting discovery against the government, Dr. Chen subpoenaed Ms. Herridge to disclose her confidential sources.
Ms. Herridge fought the subpoena, asserting that the freedom of press guaranteed by the First Amendment protects her from having to disclose her sources. In a ruling issued this August, Judge Christopher Cooper disagreed and ordered Ms. Herridge to disclose her sources. Judge Cooper held that, under binding precedent, Dr. Chen has made the requisite showing to overcome Ms. Herridge’s First Amendment privilege. The court stressed that, although it “does not question the vital role of a free press in baring the secrets of government and informing the people,” “the protections of the Privacy Act do not disappear when the illegally disclosed information is leaked to a journalist, no matter how newsworthy the government official may feel the information is.”
Disobeying Judge Cooper’s order, Ms. Herridge refused to disclose her sources at a recent deposition held on September 26. She also broadly refused to answer numerous other questions about her newsgathering process at Fox News. It appears that, rather than disclosing her sources, Ms. Herridge is willing to be held in contempt in order to appeal Judge Cooper’s ruling. That contempt process is now beginning, with the court expected to soon order Herridge to show cause why she should not be held in contempt. Ms. Herridge has indicated she intends to appeal to the D.C. Circuit, and will ask the court to upend its established standard for overcoming a journalist’s First Amendment privilege and replace it with a new one more favorable to Ms. Herridge.
Recent media attention—which has emphasized the journalistic importance of confidential sources—does not acknowledge the importance of holding accountable government actors engaged in wrongdoing. See Oliver Darcy, CNN, A former Fox News correspondent is refusing to reveal a source. Her fate is now in a judge’s hands, https://www.cnn.com/2023/11/08/media/herridge-fox-journalist-sources-sanction/index.html. This coverage fails to capture that it is Ms. Herridge, not Dr. Chen, who is seeking to disrupt the longstanding and thoughtful approach courts have taken to balance that interest with citizens’ right to seek accountability for the illegal disclosure of their private information. It also overlooks that the leak of Dr. Chen’s information shortly after her investigation ended without charges displays an abusive effort to personally harm Dr. Chen outside lawful channels.
Indeed, as Judge Cooper put it, “The Privacy Act protects not just Chen but all private citizens, whether blameworthy or blameless, from the risk that government officials might be tempted to abuse their access to sensitive information by leaking materials intended to embarrass particular individuals.”
That is all the more important here, given Dr. Chen’s case stems from an investigation under the FBI’s China Initiative—a now-abandoned program that fell under heavy criticism for excessive and misguided prosecutions of scientists of Chinese ancestry. See Michael German, Brennan Center for Justice, End of Justice Department’s ‘China Initiative’ Brings Little Relief to U.S. Academics, https://www.brennancenter.org/our-work/analysis-opinion/end-justice-departments-china-initiative-brings-little-relief-us. Dr. Chen thus fully expects to succeed in securing a ruling affirming the order requiring Ms. Herridge to disclose her sources. And with those sources uncovered, Dr. Chen will ultimately be able to hold the government accountable for its illegal conduct.
The lawsuit (filed in 2018) seeks accountability from the federal government for selectively leaking to Fox News information about Dr. Chen gathered during an FBI investigation. After the investigation ended with no charges, former Fox News reporter Catherine Herridge published a series of reports that damaged the reputation of Dr. Chen and the University of Management and Technology, which Dr. Chen owns. Ms. Herridge’s reports notably displayed confidential materials from the FBI investigation, including personal photographs of Dr. Chen and her family, memoranda from FBI interviews, and Dr. Chen’s immigration and naturalization records.
Last year, after exhausting discovery against the government, Dr. Chen subpoenaed Ms. Herridge to disclose her confidential sources.
Ms. Herridge fought the subpoena, asserting that the freedom of press guaranteed by the First Amendment protects her from having to disclose her sources. In a ruling issued this August, Judge Christopher Cooper disagreed and ordered Ms. Herridge to disclose her sources. Judge Cooper held that, under binding precedent, Dr. Chen has made the requisite showing to overcome Ms. Herridge’s First Amendment privilege. The court stressed that, although it “does not question the vital role of a free press in baring the secrets of government and informing the people,” “the protections of the Privacy Act do not disappear when the illegally disclosed information is leaked to a journalist, no matter how newsworthy the government official may feel the information is.”
Disobeying Judge Cooper’s order, Ms. Herridge refused to disclose her sources at a recent deposition held on September 26. She also broadly refused to answer numerous other questions about her newsgathering process at Fox News. It appears that, rather than disclosing her sources, Ms. Herridge is willing to be held in contempt in order to appeal Judge Cooper’s ruling. That contempt process is now beginning, with the court expected to soon order Herridge to show cause why she should not be held in contempt. Ms. Herridge has indicated she intends to appeal to the D.C. Circuit, and will ask the court to upend its established standard for overcoming a journalist’s First Amendment privilege and replace it with a new one more favorable to Ms. Herridge.
Recent media attention—which has emphasized the journalistic importance of confidential sources—does not acknowledge the importance of holding accountable government actors engaged in wrongdoing. See Oliver Darcy, CNN, A former Fox News correspondent is refusing to reveal a source. Her fate is now in a judge’s hands, https://www.cnn.com/2023/11/08/media/herridge-fox-journalist-sources-sanction/index.html. This coverage fails to capture that it is Ms. Herridge, not Dr. Chen, who is seeking to disrupt the longstanding and thoughtful approach courts have taken to balance that interest with citizens’ right to seek accountability for the illegal disclosure of their private information. It also overlooks that the leak of Dr. Chen’s information shortly after her investigation ended without charges displays an abusive effort to personally harm Dr. Chen outside lawful channels.
Indeed, as Judge Cooper put it, “The Privacy Act protects not just Chen but all private citizens, whether blameworthy or blameless, from the risk that government officials might be tempted to abuse their access to sensitive information by leaking materials intended to embarrass particular individuals.”
That is all the more important here, given Dr. Chen’s case stems from an investigation under the FBI’s China Initiative—a now-abandoned program that fell under heavy criticism for excessive and misguided prosecutions of scientists of Chinese ancestry. See Michael German, Brennan Center for Justice, End of Justice Department’s ‘China Initiative’ Brings Little Relief to U.S. Academics, https://www.brennancenter.org/our-work/analysis-opinion/end-justice-departments-china-initiative-brings-little-relief-us. Dr. Chen thus fully expects to succeed in securing a ruling affirming the order requiring Ms. Herridge to disclose her sources. And with those sources uncovered, Dr. Chen will ultimately be able to hold the government accountable for its illegal conduct.
Dr. Yanping Chen is a naturalized U.S. citizen born in China. She was a cardiologist and medical researcher with the Chinese astronaut program. She came to the U.S. in 1987 to study and earned a Master’s degree and a Ph.D. in Public Policy from George Washington University. She married a U.S. citizen, became a lawful permanent resident in 1993, and a U.S. citizen in 2001.
She lives in Arlington, Virginia. In 1998, Dr. Chen founded the University of Management and Technology in Arlington to provide secondary and graduate education to working adults. More than 12,000 students have received degrees in the last 20 years. In 2010, Dr. Chen became the focus of a Federal Bureau of Investigations (FBI) investigation. After 6 years of investigation, Dr. Chen was told that no charges will be filed against her in 2016. However, confidential information from the investigation was allegedly leaked to Fox News in or around 2017. On December 21, 2018, Dr. Chen filed a privacy lawsuit against the FBI, Department of Justice, Department of Defense, and Department of Homeland Security. The above information was obtained from a report by the National Law Journal and a 14-page complaint filed by Dr. Chen, who is represented by the legal firm WilmerHale. |
陈燕平博士出生于中国，是一位入籍美国公民。她曾担任中国宇航员项目的心脏病专家和医学研究员。于1987年来到美国学习并获得乔治华盛顿大学的公共政策硕士学位和博士学位。她与一名美国公民结婚，1993年成为合法的永久居民，2001年成为美国公民。
她现住在弗吉尼亚州的阿灵顿。 1998年，陈博士在阿灵顿成立了管理和技术大学，为在职成年人提供大学和研究生教育。在过去的20年里，已有超过12,000名学生获得学位。 2010年，陈博士成为联邦调查局（FBI）调查的焦点。经过6年的调查，在2016年陈博士被告知，不会对她提出任何指控。 但调查中的有关她的保密信息据称于2017年或之前泄露给福克斯新闻。 2018年12月21日，陈博士向联邦调查局，司法部，国防部和国土安全部提起侵犯隐私的诉讼。 上述信息来自国家法律期刊的报告和代表陈博士的律师所提交的的14页投诉。 |
Update on October 26, 2022
Dr. Yanping Chen’s Privacy Act case against the FBI, DOD, DHS, and DOJ remains ongoing almost four years after she filed the complaint. The lawsuit seeks accountability from the federal government for selectively leaking to Fox News information about Dr. Chen gathered during an FBI investigation. Dr. Chen claims that, after the FBI investigation ended with no charges, Fox News reporter Catherine Herridge published a series of reports displaying materials from the investigation, including personal photographs of Dr. Chen and her family, memoranda from FBI interviews, and Dr. Chen’s immigration and naturalization records.
According to court records, Dr. Chen has spent years seeking discovery from the government regarding the source of the leak. Yet the defendants have sought to keep information about the investigation of Dr. Chen secret. The FBI, for example, refused to confirm or deny whether an individual who appeared in Fox News’s reports is—as he claimed to Fox News—an FBI informant who worked on the investigation of Dr. Chen. The FBI has also claimed “law enforcement privilege” protects significant information related to the investigation in government records and from government witnesses. In February of 2022, the US District Court for the District of Columbia largely upheld the government’s claims of privilege, based in part on a classified hearing in which only government counsel (and not Dr. Chen) was able to participate.
Despite these difficulties, court records reflect that Dr. Chen has discovered evidence that Stephen Rhoads—a U.S. Army warrant officer who cooperated in the FBI’s investigation of Dr. Chen—frequently communicated with Ms. Herridge in advance of the Fox News publications. In a decision issued late last year, the Court stated that “newly produced records support a good-faith basis to believe Rhoads himself may have played a role, perhaps an important one, in the alleged leak. His pattern of communication with journalists about Chen, and any related communications with individuals within the government, are highly relevant to these issues and the extent to which the government directed, endorsed, or is otherwise responsible for his actions.”
Dr. Chen is now seeking information about the leak directly from Fox News and Ms. Herridge. Both Fox News and Ms. Herridge have moved to quash subpoenas served on them by Dr. Chen for documents and depositions about the leak. Those motions are currently pending before the Court.
According to court records, Dr. Chen has spent years seeking discovery from the government regarding the source of the leak. Yet the defendants have sought to keep information about the investigation of Dr. Chen secret. The FBI, for example, refused to confirm or deny whether an individual who appeared in Fox News’s reports is—as he claimed to Fox News—an FBI informant who worked on the investigation of Dr. Chen. The FBI has also claimed “law enforcement privilege” protects significant information related to the investigation in government records and from government witnesses. In February of 2022, the US District Court for the District of Columbia largely upheld the government’s claims of privilege, based in part on a classified hearing in which only government counsel (and not Dr. Chen) was able to participate.
Despite these difficulties, court records reflect that Dr. Chen has discovered evidence that Stephen Rhoads—a U.S. Army warrant officer who cooperated in the FBI’s investigation of Dr. Chen—frequently communicated with Ms. Herridge in advance of the Fox News publications. In a decision issued late last year, the Court stated that “newly produced records support a good-faith basis to believe Rhoads himself may have played a role, perhaps an important one, in the alleged leak. His pattern of communication with journalists about Chen, and any related communications with individuals within the government, are highly relevant to these issues and the extent to which the government directed, endorsed, or is otherwise responsible for his actions.”
Dr. Chen is now seeking information about the leak directly from Fox News and Ms. Herridge. Both Fox News and Ms. Herridge have moved to quash subpoenas served on them by Dr. Chen for documents and depositions about the leak. Those motions are currently pending before the Court.
Links and References
2023/12/08 Washington Post: A CBS reporter refusing to reveal her sources could be held in contempt
2023/11/08 CNN: A former Fox News correspondent is refusing to reveal a source. Her fate is now in a judge’s hands
2023/08/07 Just The News: Judge orders Catherine Herridge to reveal sources for stories on FBI, Chinese American scientist
2023/08/03 Voice of America: US Judge Orders Reporter to Reveal Confidential Sources
2023/08/01 US Press Freedom Tracker: Former Fox News journalist subpoenaed to reveal confidential source
2023/05/30 Politico: Fox News, backed by Trump White House lawyer, fights subpoena in leak lawsuit
Court House News: Fox News pushes to quash subpoena that could unmask source
2022/09/06 Plaintiff's Memorandum in Opposition to Non-Party Catherine v. Herridge's Motion to Quash
2021/11/23 Opinion and Order Case No. 20-mc-107
2021/05/11 Memorandum Opinion and Order
2020/02/12 Government motion for 6-day extension
2020/01/27 Judge denies motion to dismiss
Leagle: Yanping Chen v. F.B.I.
2019/05/01 Dr. Chen's opposition to the government's motion to dismiss; attachments
2019/04/17 Government's motion to dismiss
2023/11/08 CNN: A former Fox News correspondent is refusing to reveal a source. Her fate is now in a judge’s hands
2023/08/07 Just The News: Judge orders Catherine Herridge to reveal sources for stories on FBI, Chinese American scientist
2023/08/03 Voice of America: US Judge Orders Reporter to Reveal Confidential Sources
2023/08/01 US Press Freedom Tracker: Former Fox News journalist subpoenaed to reveal confidential source
2023/05/30 Politico: Fox News, backed by Trump White House lawyer, fights subpoena in leak lawsuit
Court House News: Fox News pushes to quash subpoena that could unmask source
2022/09/06 Plaintiff's Memorandum in Opposition to Non-Party Catherine v. Herridge's Motion to Quash
2021/11/23 Opinion and Order Case No. 20-mc-107
2021/05/11 Memorandum Opinion and Order
2020/02/12 Government motion for 6-day extension
2020/01/27 Judge denies motion to dismiss
Leagle: Yanping Chen v. F.B.I.
2019/05/01 Dr. Chen's opposition to the government's motion to dismiss; attachments
2019/04/17 Government's motion to dismiss
Attorneys representing Dr. Yanping Chen Left: Matt Jones Right: Jessica Lutkenhaus |