by Matthew L. Schafer
On Friday, the Associated Press’s General Counsel Laura Malone received a letter from the Department of Justice. It informed the AP that the United States government had seized records related to twenty phone lines used by AP journalists and other employees. The records, which included personal cellphone and home phone records, were gathered over a two month period.
According to the Washington Post, the telephone records were seized in connection with investigations into recent national security leaks by government employees.
In a letter sent Monday, the President and CEO of the AP, Gary Pruitt, called the government’s actions a “massive and unprecedented intrusion” into the newsgathering process.
“There can be no possible justification for such an overbroad collection of the telephone communications of The Associated Press and its reporters,” Mr. Pruitt wrote. “These records potentially reveal communications with confidential sources across all of the newsgathering activities undertaken by the AP during a two – month period, provide a road map to AP’s newsgathering operations, and disclose information about AP’s activities and operations that the government has no conceivable right to know.”
“There can be no possible justification for such an overbroad collection of the telephone communications of The Associated Press and its reporters,” Mr. Pruitt wrote.
In response to requests for comment, the DOJ told Business Insider, “We take seriously our obligations to follow all applicable laws, federal regulations, and Department of Justice policies when issuing subpoenas for phone records of media organizations. . . . Because we value the freedom of the press, we are always careful and deliberative in seeking to strike the right balance between the public interest in the free flow of information and the public interest in the fair and effective administration of our criminal laws.”
Mr. Pruitt is exactly right: the actions are unprecedented. While it is impossible to know exactly how many times the government has taken similar actions, only a handful of cases of news organizations and reporters have ever been challenged in the courts. This small number of cases making it to the courts is a testament to the normal restraint the government showed in the past when it sought material from reporters.
According to the Reporter’s Committee for the Freedom of the Press, the DOJ has only issued eighty-nine subpoenas, seeking the identities of reporters’ confidential sources, to reporters.
In a Freedom of Information Act request sent in January by Lippmann Would Roll to the U.S. Attorney General’s Office, the DOJ said that it only collected fifty-four subpoenas over the same twelve-year-period reported by the Reporter’s Committee. Surprisingly, even though the Attorney General must approve subpoena requests, the DOJ indicated in its letter to LWR that “The Office of the Attorney General . . . do[es] not maintain all media subpoena files.”
Currently, LWR has a FOIA request in to the DOJ’s Criminal Division, the division that most likely collected the AP’s telephone records.
The actions taken against the AP are especially disconcerting as, unlike targeted subpoenas seeking the name of a single confidential source, the DOJ’s collection of AP telephone records are, apparently, a blanket collection of all telephone records relating to the twenty phone lines, which include the phones of the AP’s bureaus in New York and Washington, D.C.
Whenever the DOJ seeks to subpoena a reporter to force him to identify his source or seeks the telephone records of reporters, it must follow an internal regulation, 28 C.F.R. § 50.10. Although the internal regulation does not create a private cause of action by which reporters could sue the DOJ for violating its terms, it does place supposed internal limitations on actions that U.S. attorneys can take when seeking records from the news media.
When a U.S. attorney seeks telephone records in a criminal investigation, he must show that a crime has occurred and that the information isn’t otherwise available from other sources.
The attorney must also show that he entered into negotiations with the news organization in an attempt to reach an amicable result and provided “reasonable and timely notice of the determination of the Attorney General to authorize the subpoena and that the government intends to issue it,” unless such notification would “pose a clear and substantial threat to the integrity of the investigation.”
Finally, “[t]he 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 form that the DOJ’s Tax Division uses for such requests was sent to LWR after a FOIA request earlier this year.)
In general and according to the DOJ’s regulation, “[T]he 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.”
If the government failed to tailor its seizure of telephone records to those telephone lines relating to the leaks, which is likely as it apparently made no attempts to focus the investigation on a single reporter close to the leaks in question, it violated its own regulation.
Moreover, the government violated the regulation by failing to engage the AP in any negotiations, as it is completely unclear how negotiating with the AP in private would have damaged its leak investigation into a leak that had already occurred.
Unfortunately, that agreement, which stood inviolate for the majority of United States’ history, has now been violated – perhaps irreparably. The gravity of the situation cannot be overstated.
Finally, if the DOJ failed to subpoena non-press citizens potentially related to the leak before it went after the AP records, it violated the regulation’s requirement that it seek information from alternative sources before seeking the telephone records of a journalist.
In the event that a U.S. attorney did violate the regulation, he or she would be subject to “an administrative reprimand or other appropriate disciplinary action.” This remedy is, admittedly, not that satisfactory. Thus, it is necessary to look for other solutions to this abuse of power.
In 1978, the Reporters Committee, news organizations, and reporters brought a lawsuit against several telephone companies in an attempt to force those telephone companies to inform them whenever the government was seeking their telephone records. The case went up to the U.S. Court of Appeals for the District of Columbia, which rejected the reporters’ First Amendment argument.
“The Government’s good faith inspection of defendant telephone companies’ toll call records does not infringe on plaintiffs’ First Amendment rights, because that Amendment guarantees no freedom from such investigation,” the court found.
The court went on to emphasize that “it is clear that Government access to defendants’ toll-call records in no sense ‘abridges’ plaintiffs’ news-gathering activities within the meaning of the First Amendment. Not every Government action that affects, has an impact on, or indeed inhibits First Amendment activity constitutes the kind of ‘abridgment’ condemned by the First Amendment.”
Even though the D.C. Court of Appeals decided in favor of the government thirty-five years ago, in the intervening years some U.S. Courts of Appeals have found that reporter’s may be protected from such interferences in some instances. These conflicting findings have created a fragmented legal environment where some U.S. Courts of Appeals recognize strong First Amendment privileges for reporters and some don’t. In short, the issue is unsettled and begs for the U.S. Supreme Court to revisit it.
In the U.S. Courts of Appeals that embrace strong First Amendment protections, there is a good argument that the DOJ’s actions would be unconstitutional. These courts require that information collected be relevant to a criminal investigation. When the DOJ gave up on the targeted seizure of telephone records of, for example, the reporter who initially reported on the leak, it failed to entertain any questions of the relevance and scope of the information it was gathering.
Of course, however, this story goes beyond the mere violations of internal regulations and Supreme Court jurisprudence to shake the very foundation of an long and implicit agreement between the government and the press.
The breadth of the seizure also raises questions as to whether the government essentially “‘annex[ed]’ the news media as ‘an investigative arm of government.'” The phrase has never been defined with any degree of specificity because the government has never undertaken such an effort to the degree it did with the AP. In one famous case though, Justice Powell said that such a result would raise serious First Amendment questions.
Of course, however, this story goes beyond the mere violations of internal regulations and Supreme Court jurisprudence to shake the very foundation of an long and implicit agreement between the government and the press. In the past, the government has respected the division between the press and itself, understanding that both parties rely on each other to fulfill their functions effectively. Unfortunately, that agreement, which stood inviolate for the majority of United States’ history, has now been violated – perhaps irreparably.
The gravity of the situation cannot be overstated. It is completely antithetical to the very theory of our democracy and a free press. That theory is simple: for democracy to thrive, the press must be free to gather and disseminate news about the government to the citizenry without fear of reprisal or punishment.
As the Supreme Court said sixty-eight years ago in a case aptly captioned for the purposes of the present controversy, Associated Press v. United States, “The First Amendment rests on the assumption that the widest possible dissemination of information from diverse and antagonistic sources is essential to the welfare of the public, that a free press is a condition of a free society.”
For more coverage of subpoenas against journalists, please review these articles also available at LWR.