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Related: Editorials & Other Articles, Issue Forums, Alliance Forums, Region ForumsThree Questions about Government Spying on the Press
From the Big Bad Cato Institute
http://www.cato.org/blog/three-questions-about-government-spying-press
Its heartening to see widespread outrageboth online and from members of Congressabout the news that Justice Department vacuumed up phone records spanning two months from 20 phone lines belonging to the Associated Press or its employees. This may not be a return to the bad old days of J. Edgar Hoover, who kept files of derogatory information about hostile journalists, but surveillance of the presseven in the course of otherwise legitimate investigationsalways threatens to impede the vital check on government the Fourth Estate provides.
A subpoena covering so many of a major news organizations phone lines, including shared switchboard and fax numbers used by scores of reporters, for such an extended period, seems especially troubling in the context of this administrations unprecedented war on whistleblowers. Its effectively a warning that nobody who speaks to the press without White House approvalwhether theyre leaking classified secrets or just saying things the bosses wouldnt likecan count on anonymity. Ill have plenty more to say about this soon, but a few key questions reporters and legislators ought to be asking:
DOJ regulations are supposed to require a careful balancing of investigative needs against First Amendment values before reporter records are sought, with advance notice to the press whenever possible. The AP is fairly certain its records were seized as part of a leak investigation aimed at uncovering the source of a story about a foiled terrorist plota story the AP itself sat on until they were convinced publication posed no national security risk. The administration itself was on the verge of announcing the same facts. Given that anonymous sources discussing classified matters with press are a routine and indispensable part of journalism, what made this investigation so urgent that it was necessary to use methods experts agree were far more broad and intrusive than the norm?
Read hyper-literally, those same DOJ regulations refer only to subpoenas directed at journalists themselves or seeking telephone toll records. And the DOJs own operational guidelines make quite clear that they do read the rules hyper-literally: They apparently are not held to apply to the myriad tools other than grand jury subpoenas at the governments disposal, such as National Security Letters or administrative subpoenas. Does DOJ employ a similarly literal reading of telephone toll records, such that theyre not required to observe these rules when they obtain other electronic records, such as e-mail transactional data? The DOJ, recall, says they often dont need warrants to read e-mail or Facebook chats, let alone review transactional metadata concerning such communications.
So it seems odd that they would pull out all the stops when it comes to phone records, yet ignore the channels by which modern reporters probably conduct the bulk of their correspondence. Even if it would have been infeasible to access logs of APs e-mail transactional data without tipping them off (my understanding is they maintain their own e-mail servers), nearly every journalist has potentially revealing Facebook friend lists, personal Gmail accounts, Twitter direct message headers, and so onsome of which would be more targeted than records from phone lines shared by dozens of journalists.
Was other data that DOJ believes to be outside the scope of their reporting obligationseither because it wasnt obtained by subpoena or because it wasnt telephone toll recordsobtained in this case? More broadly, how much press data is obtained without notification because it falls outside these categories?
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