The story of how the Justice Department secretly obtained journalists’ phone records is developing quickly. Here is an overview of the issues.

What Happened?

On May 13, Mark Sherman of the Associated Press reported: “The Justice Department secretly obtained two months of telephone records of reporters and editors for the Associated Press in what the agency's top executive called a ‘massive and unprecedented intrusion’ into how news organizations gather the news.”

• The records listed outgoing calls made during April and May of 2012 from 20 phone lines at AP offices in New York, Washington, D.C., and Hartford, Conn., and from the AP’s line in the House of Representatives press gallery.
• The total number of journalists affected is unclear but the AP reports that more than 100 journalists work in those offices.

Why Did it Happen?

Reports have suggested, and recent comments from Attorney General Eric Holder seem to confirm, that this activity occurred as part of an ongoing Justice Department investigation into leaks that led to an Associated Press story published in May 2012. The AP reports that “The story disclosed details of a CIA operation in Yemen that stopped an Al-Qaeda plot to detonate a bomb on an airplane bound for the United States.”

Why Does it Matter?

Our democracy has always relied on a robust, unfettered and truly free press that holds the government accountable and informs the public.

A May 14 letter spearheaded by the Reporters Committee for Freedom of the Press (RCFP) and signed by more than 50 major news and press freedom organizations, including Free Press, notes that “In the 30 years since the Department issued guidelines governing its subpoena practice as it relates to phone records from journalists, none of us can remember an instance where such an overreaching dragnet for newsgathering materials was deployed by the Department, particularly without notice to the affected reporters or an opportunity to seek judicial review.” The DoJ’s action could:

• Reveal hundred of confidential sources working with AP reporters.
• Chill whistleblowing and intimidate anonymous government sources.

Trevor Timm of the Freedom of the Press Foundation notes that “While this incident has brought the Justice Department's crackdown on leakers to a new extreme, it’s important to remember [that] this storm has been brewing for a while now. In five years, the Obama administration has prosecuted more leakers under the Espionage Act than all other administrations combined, and virtually all these prosecutions have engulfed journalists one way or another.”

What Rules Govern the DoJ in this Case?

The letter from the RCFP outlines the key rules at play in this case and suggests that at least some may have been violated: “Subpoenas of the news media for testimony and evidence are governed by the Attorney General’s guidelines ... These guidelines … were developed to accommodate both the interests of the government in prosecuting crime and the First Amendment interests in reporting on issues of public concern.” The RCFP letter includes the following guidelines:

• A subpoena “should be as narrowly drawn as possible; it should be directed at relevant information regarding a limited subject matter and should cover a reasonably limited time period.”
• The Department must take “all reasonable alternative investigative steps” before subpoenaing phone records.
• Federal prosecutors must disclose their intent to pursue a subpoena and negotiate with the news media in “all cases” involving telephone records.
• The “approach in every case must be to strike the proper balance between the public’s interest in the free dissemination of ideas and information and the public’s interest in effective law enforcement and the fair administration of justice.”

(See also Poynter's "Feds Explain Why They Grabbed AP Records Without Negotiating First.")

Glenn Greenwald notes in the Guardian that:

There are numerous instruments that have been vested in the DoJ to obtain phone records, many of which do not require court approval, including administrative subpoenas and 'national security letters' (issued without judicial review); indeed, the Obama DoJ has previously claimed it has the power to obtain journalists' phone records without subpoeans using NSLs, and in its relentless pursuit to learn the identity of the source for one of the New York Times' James Risen's stories, the Obama DoJ has actually claimed that journalists have no shield protections whatsoever in the national security context.

(See also the Washington Post's “In AP Surveillance Case, the Real Scandal Is What’s Legal” and ProPublica’s “No Warrant, No Problem: How The Government Can Still Get Your Digital Data.”)

The DoJ, AP and the White House Respond

On Tues., May 14, Attorney General Holder confirmed that the phone records request related to the AP's CIA story, and suggested that the leak was “very grave” and “put the American people at risk.” However, as the Washington Post reports, Holder revealed that he had recused himself “because of congressional testimony he had given and his dealings with the news media.” Deputy Attorney General James Cole signed off on the AP phone records request.

“Other than press reports,” White House Press Secretary Jay Carney said, “we have no knowledge of any attempt by the Justice Department to seek phone records of the AP.” 

The AP responded swiftly to Attorney General Holder, arguing “We appreciate the DoJ’s prompt response, but it does not adequately address our concerns.” The AP also noted inconsistencies in the government’s response.

On May 15, the White House asked Sen. Charles Schumer to reintroduce a journalist “shield law” to protect journalists from revealing their sources. While a strong shield law would be great, it likely wouldn't have helped the AP in this case because the DoJ obtained these phone records from the telephone company, not from AP.

At a congressional hearing on May 15, Holder confirmed that Deputy Attorney General James Cole approved the subpoena for the AP's phone records. Holder promised the agency would review the decision (called an "after-action") once the investigation was over. 

What is the Precedent Here?

Harvard's Digital Media Law Project has outlined some relevant case law and legislation and discussed each in detail:

• Zurcher v. Stanford Daily: In 1971, when the Stanford Daily's office was raided by police seeking information on a recent campus demonstration, the students sued under the First and Fourth and First Amendments. The Supreme Court eventually ruled 5-3 that the search was constitutional.
• Privacy Protection Act of 1980: In response to the Stanford Daily case, Congress passed the Privacy Protection Act, which “creates protections against searches for the work product or other documents” of journalists.  The Digital Media Law Project notes that “the provisions of the PPA ... do not apply to records in the possession of third parties, such as the telephone records.”
• Smith v. Maryland: In this 1979 decision, the Supreme Court found that people have no expectation of privacy when it comes to the numbers they call because they understand it has to be transmitted through a third party (the telephone company). The Digital Media Law Project notes that  “the government can obtain that information simply by issuing a subpoena to a telephone company or other third party.”

Al Tompkins of the Poynter Institute has a great piece that tracks how the federal government has used national security concerns to justify the silencing of journalists. Here are a few key points:

• 1798: Congress passed the Sedition Act, which “sent around 25 people, mostly newspaper editors, to prison and shut down their papers” for “false, scandalous, and malicious” writing about the government.
• 1917: Congress passed the Espionage Act, which “allowed the government to censor German-language publications or any publication that seemed ‘pro-German.’”
• 2004: The Bush administration cited security concerns in opposing CBS' airing of the Abu Ghraib prison torture video. 

What Can We Do About It?

The RCFP and more than 50 media organizations have called on the Justice Department to:

• Immediately return the telephone records obtained and destroy all copies, as requested by the Associated Press.
• Explain how government lawyers overreached so egregiously in this matter and describe what the Department will do to mitigate the impact of these actions.
• Disclose more information on who has had access to the phone records and what protections were taken to ensure that information unrelated to a specific criminal investigation was not utilized by any Department employees.
• Announce whether it has served any other pending news media-related subpoenas that have not yet been disclosed.

The RCFP argued “the Department’s actions demonstrate that a strong federal shield law is needed to protect reporters and their newsgathering materials in a court of law where the adversarial process ensures a fair weighing of the issues.”

We need broad-based public support to hold the Justice Department and other federal agencies accountable for their actions. Free Press has launched a sign-on letter that will be delivered to the DoJ and Congress.