The Justice Department Shouldn’t Be Snooping on Journalists

At a time when President Trump regularly attacks the news media, the Department of Justice may be preparing to make it easier for the government to obtain journalists’ private communications data.

The public relies on both journalists and whistleblowers for vital information about our government’s most controversial activities. Weakening the current rules that protect reporters — as well as their sources — would undermine freedom of the press and endanger activities at the heart of the First Amendment.

This week, The Hill reported that DOJ has been working for months on potential revisions to its rules about when prosecutors can demand reporters’ phone records and other sensitive information like notes or emails. These records can reveal a journalist’s confidential sources, including the individuals who entrust journalists with information the public needs to know. The new report comes after statements by former Attorney General Jeff Sessions that, under his watch, DOJ was pursuing three times as many leak investigations as it did under the Obama administration — which itself set records for leak prosecutions.

The report comes the same week that President Trump’s nominee to be the next attorney general, William Barr, was asked at his Senate confirmation hearing whether “he would jail reporters for doing their jobs” — meaning reporters who would not disclose their sources to prosecutors. After a long pause, Barr refused to rule it out.

DOJ’s rules were last strengthened in 2013, in response to public outcry after it emerged that it had used subpoenas to obtain the phone records of 20 Associated Press reporters as part of one leak investigation, and had seized the emails and phone records of Fox News reporter James Rosen in another. Now, the department is apparently considering reversing course and rolling back at least two key protections.

First, the current rules require that the government exhaust all other reasonable investigative steps before seeking a journalist’s confidential information using a subpoena or search warrant. This requirement recognizes the heightened sensitivity of records related to newsgathering, as well as the fact that seizing these types of records has a broad chilling effect on the work of a free press, far beyond any single investigation.

Second, the rules establish a presumption that DOJ will provide advance notice to a media organization before relying on a subpoena or search warrant to seize records, unless the attorney general personally determines that an exception applies. Notice allows media organizations to challenge a subpoena in court, for example, or to discuss the scope of a subpoena with the government before sensitive records are seized en masse.  

Investigators at DOJ have reportedly chafed at these requirements, arguing that honoring them makes leak investigations more resource-intensive and gives special treatment to journalists.

But these rules are not about special treatment — they exist to ensure that the free press guarantee of the First Amendment is a meaningful one. It should not be easy for the government to sift through journalists’ confidential sources precisely because of the damaging effects that would have on a robust and independent press.

The rules acknowledge the unique role that newsgathering plays in providing information to the public, including critical decisions by policymakers. Indeed, without such disclosures, the public would have never known about innumerable government activities that shouldn’t have been hidden in the first place, from the Pentagon Papers to illegal spying by the NSA.

Ultimately, the current complaints reflect a problem of DOJ’s own making. Leaks to reporters have always been a necessary element of healthy democratic debate in this country, yet under President Trump leak investigations have reached unprecedented heights. That is alarming enough. But the “stresses” this has placed on DOJ resources should not be a pretext for tearing down protections that are more important than ever.

The reality is that with the expansion of electronic communications, it has only gotten easier for DOJ to identify contacts with reporters, precisely because of the digital trail our communications leave behind. It has also gotten more dangerous for their contacts: Seizing all of a journalist’s phone records or email over a period of weeks or months is likely to expose even more confidential sources to scrutiny, even if those sources had no ties to the original investigation.

If anything, protections should be even stronger than they are, as the current rules do not go nearly far enough to safeguard both reporters and whistleblowers. Congress should pass a “reporter shield law” to close existing loopholes — and to prevent DOJ from seeking to jail reporters who are just doing their job when they refuse to disclose their sources.

Government leaks are often necessary so the public can hold its government accountable. Our democracy depends on assurances that confidential communications between journalists and their sources will be strongly protected.

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Anonymous

The DOJ also seems to falsely label “blacklisting victims” (regular Americans) as targets of leak investigations. Apparently the investigators themselves can’t distinguish government employees from private citizens. Here’s how so-called “leak investigations” seem to work: let’s say 100 people knew about a particular secret, the investigators give veiled death threats to all 100 people, apparently not having a clue based on actual evidence. Apparently because of the fraudulent and excessive secrecy, they think some non-governmental Americans are government officials. Sounds ridiculous, but this is real terrorism. In some ways the innocent government employees need the most protection - more than regular citizens - since John Ashcroft and friends destroyed all internal whistleblower protections. After nearly 20 years of this non-sense, a federal judge should step in to protect the intel employees being harmed by the goons (I mean leak investigators).

Anonymous

What you say is so very important, but I'm still trying to determine why Liberty University's senior IT administrator was creating false or rigged polling data for Trump and his campaign, according to himself. Sometimes Trump wasn't running his own campaign decisions, so he can't be held responsible for the 100 plus campaign contacts with Russians and their government. So is he responsible for campaign payments to hide marital infidelities? What is the intel community saying about all this too?

Anonymous

When is the Roberts’ U.S. Supreme Court going to start providing Judicial Review [checks & balances] over the two political branches, including the U.S. Department of Justice? Since 2001, our nation’s best newspapers and media organizations have suffered a huge financial burden filling the vacuum left by the U.S. Supreme Court. At no expense to taxpayers, private Press organizations have provided checks & balances, that is the primary responsibility of the Roberts’ Court. Consider the following: The Washington Post reported that the Bush Justice Department was trying to coerce Qwest Communications to perform warrantless wiretapping (a felony crime) almost 6-months BEFORE 9/11 when no wartime emergency existed. When Qwest’s CEO refused, he was sent to prison for several years. This was before 9/11. Since the 1970’s, the one and only legal path for any president is through the FISA Court. A few years later USA Today and the New York Times reported similar law breaking. The GOP controlled Congress then made those past felony crimes legal (ex post facto is prohibited under Article I), only presidents can pardon those that have been already convicted, not Congress. During this period, top journalists had to take new jobs, newspapers/media outlets had to find new sources of revenue and legal whistleblowers were punished using the Espionage Act of 1917. Over 90% of Espionage Act investigations were used against non-spies and most of these cases happened since 2001. Less than 10% happened from 1917 until 2001. DOJ attorneys violated federal torture laws. The DOJ locked up American citizens without charge or trial. Attorney General Ashcroft was severely reprimanded by a federal appeals court for his fraudulent abuse of the federal Material Witness Statute (essentially used for false imprisonment). Today this same agency is violating the First Amendment rights of journalists. The Roberts’ Court needs to wake up!

Anonymous

Not only is the sort of review that you seem to want NOT the primary responsibility of the Court, SCOTUS has no legal authority to initiate any sort of review. They can only act on matters brought before the Court.

Anonymous

Journalism is dead. All it is now is a party of opinions. Whoever yells the loudest gets the camera. Yell and scream all you want but nobody pays attention to the mainstream media or any longer. They have no credibility any longer. Long live the internet.

Anonymous

"They have no credibility any longer." Tons more credibility then our president. They just report what trump says and does. It's easy after trump talks or tweets his BS.

Ms. Gloria Anasyrma

It doesn't matter what you do, the government will always be snooping on you. That's just the way it is. The government the more snoopy that Charlie Brown dog.

Anonymous

freedom of the press needs to be redefined in this time of google search. no one has the power to ruin someones life forever. removing bad articles that the press creates takes a lifetime. horrible

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