The news that the U.S. Department of Justice reviewed the phone records of numerous Associated Press reporters who were involved in the publication of a national security-related story has already prompted outrage from media and First Amendment organizations and spurred a torrent of opinion in the blogosphere. The story in question investigated a potential terrorism plot and used information from unnamed government sources. The Justice Department wanted to know the identity of those sources, and officials said they conducted a “comprehensive investigation” that included 550 interviews before at last seizing the AP’s phone records relating to a period of two months.

Legal experts point out that the Department of Justice appears to have not followed its own policies on such situations and instead employed a narrow exception to standard procedure. The general policy is spelled out in the applicable part of the Code of Federal Regulations: “Negotiations with the media shall be pursued in all cases in which a subpoena to a member of the news media is contemplated.” The Justice Department noted in a letter to the AP that negotiations are standard “unless doing so would pose a substantial threat to the integrity of the investigation.” That exception is indeed spelled out in the federal regulations.

It is possible that even if the Justice Department violated its own internal regulations, it did not break the law. The Fourth Amendment prohibits “unreasonable searches and seizures” without “probable cause,” but it appears not to stringently apply to subpoenas such as the one in this case. The so-called Pen Register Statue, which lets law enforcement monitor prospectively where/who a party is dialing, does not apply in the AP situation.

One possible legal analogy may be the 1977 Zurcher v. Stanford Daily case, in which the Supreme Court declined to limit the reach of warrant-based searches that target journalists’ work product or their sources, according to Andy Sellars at Harvard’s Digital Media Law Project. The ruling led to the 1980 passage of the Privacy Protection Act, which shields journalists from such demands before their work is disseminated to the public. In the Zurcher case, the public and Congress were surprised to see that the Supreme Court allows police to execute warrants for reporters’ work product as evidence of a crime, Sellars notes, and thus overruled the result by statute. It is possible, he says, that the “same is happening here: We are surprised to hear that the DOJ has the authority to issue these subpoenas, and may see legislation to correct that result.”

________

Key documents:

• The AP’s letter of protest to the Justice Department.
• The Justice Department’s official response to the AP.
• The original story that prompted Justice Department action.
• U.S. Code of Federal Regulations, Title 28: Judicial Administration, Part 50-Statements of Policy.
• Reporters Committee for Freedom of the Press letter to Attorney General Holder.

Initial legal and media perspectives and backgrounders:

• “Justice Dept.’s Media Investigation Policy Falls Flat Compared to Other Protections Against Press Intrusion,” by Jeffrey P. Hermes, Digital Media Law Project at Harvard’s Berkman Center for Internet & Society
• “What Journalists Need to Know about the Justice Department’s Seizure of AP Phone Records,” by Andrew Beaujon, Poynter
• “AP Probe Should Be a Wake-up Call for Journalists,” by Trevor Trimm, Media Nation
• “Why the Department of Justice Is Going After the Associated Press’ Records,” by Hayes Brown, ThinkProgress
• “Seizure of AP Phone Records: An Affront to a Free Press,” by Gene Policinski, First Amendment Center
• “Justice Department’s Pursuit of AP’s Phone Records Is Both Extreme and Dangerous,” by Glenn Greenwald, The Guardian
• “No Warrant, No Problem: How the Government Can Still Get Your Digital Data,” by Theodoric Meyer and Peter Maas, ProPublica

Related research:

• “National Security and the Press: The Government’s Ability to Prosecute Journalists for the Possession or Publication of National Security Information,” Derigan A. Silver. Communication Law and Policy, 2008, Vol. 13, Issue 4.
• “Litigating National Security Cases in the Aftermath of 9/11,” David C. Vladeck. Journal of National Security Law and Policy, 2007.
• “Lapdogs, Watchdogs, and Scapegoats: The Press and National Security Information,” Mary-Rose Papandrea. Boston College Law School Research Paper, 2008.
• “The Law Enforcement Surveillance Reporting Gap,” Christopher Soghoian. Yale Information Law Project, April 2011.
• “The Obama Administration’s Commitment to Transparency: A Progress Report,” Eric Lichtblau. Social Research, 2010, Vol. 77, No. 3.
• “Only The DOJ Knows: The Secret Law of Electronic Surveillance,” Kevin S. Bankstone. University of San Francisco Law Review, Vol. 41, page 589, 2007.
• “Reviving Telecommunications Surveillance Law,” Paul M. Schwartz. University of Chicago Law Review, 2008, Vol. 75.
• “Whistleblowers and the Obama Presidency: The National Security Dilemma,” Richard Moberly. University of Nebraska-Lincoln, 2012.

 

Tags: law, ethics, Obama administration