There’s an interesting debate going on at the Volokh Conspiracy over whether the story about the DOJ seizing phone records of innumerable AP reporters and editors is a real story or not. Orin Kerr, who is a libertarian-leaning law professor and therefore generally likely to oppose unnecessary searches and seizures, declares it a non-story at this point:
But a different picture emerges if you look past the AP’s spin. DOJ is investigating a leak of national security information to AP reporters that culminated in a May 7, 2012 story that disclosed details of a CIA operation in Yemen that stopped a terrorist plot in early 2012. The story had the byline of five AP reporters. DOJ opened an investigation into the leak to the AP, and pursuant to its published special rules on investigations involving the media investigations, issued subpoenas to find out what numbers were dialed from the relevant AP reporters during the months of April and May 2012. Presumably the thinking is that AP reporters called their sources, and the investigators want to trace the phone numbers to see who the sources might be. As far as I can tell, the information collected by the subpoena concerned the work and personal phone numbers of the five reporters and their editor, as well as the general AP office numbers where the reporters were located and for the main number for the AP in the House of Representatives press gallery. The AP knows about this because pursuant to DOJ’s policies found in 28 C.F.R. 50.10, the government was required to give the AP notice that the records were obtained. The AP received that notice in a letter on Friday, and then today (Monday) it released its AP story expressing AP’s outrage. That’s pretty much all we know so far.
Based on what we know so far, then, I don’t see much evidence of an abuse. Of course, I realize that some VC readers strongly believe that everything the government does is an abuse: All investigations are abuses unless there is proof beyond a reasonable doubt to the contrary. To not realize this is to be a pro-government lackey. Or even worse, Stewart Baker. But I would ask readers inclined to see this as an abuse to identify exactly what the government did wrong based on what we know so far. Was the DOJ wrong to investigate the case at all? If it was okay for them to investigate the case, was it wrong for them to try to find out who the AP reporters were calling? If it was okay for them to get records of who the AP reporters were calling, was it wrong for them to obtain the records from the personal and work phone numbers of all the reporters whose names were listed as being involved in the story and their editor? If it was okay for them to obtain the records of those phone lines, was the problem that the records covered two months — and if so, what was the proper length of time the records should have covered?
But Jonathan Adler respectfully disagrees:
As Orin notes, the Justice Department has special rules for this sort of thing. Yet there are reasons to doubt whether the government followed these rules. Among other things, the government is required to take “ all reasonable steps to attempt to obtain the information through alternative sources or means,” including attempts at negotiations with the media source before any request for a subpoena is made, unless the Assistant Attorney General concludes such negotiations would pose a “substantial threat” to the investigation…
UPDATE: To place this in further context, it’s worth remembering the FBI has a history of obtaining phone records without following the relevant guidelines.
SECOND UPDATE: Another reason I don’t believe this is a “non-story” is because seizures of this sort have potentially significant implications for newsgathering organizations. Further, insofar as the relevant guidelines vest the Justice Department with substantial discretion, how such discretion is used is a matter of significant import. I agree with Orin that it’s possible that the Justice Department acted properly here (though I suspect I’m more inclined to see this particular seizure as overbroad), but that does not mean that the threat of such seizures does not have the potential to chill investigative journalism. In my view, the federal government should, insofar as is possible, focus more on the leakers than on those who receive the leaks.
Whether the DOJ’s actions were technically illegal or not is not really the important question, in my view. I’d like to know if these were administrative subpoenas or judicial subpoenas. Were they approved by a judge, a grand jury or a DOJ or FBI employee? In other words, did they actually have to make the case to some party other than themselves that the seizure of those records was necessary and limited in scope? Such safeguards are incredibly important. Adler is right to point out that this kind of power has been routinely abused by the government before.
But there are a couple of other broader issues that are very important. The first is the obvious hypocrisy. Washington leaks like a sieve. Every single day someone in Congress, the White House or some federal agency is leaking information to reporters. Most of the time those leaks are sanctioned and intentionally designed for a purpose, they’re not whistleblowers. Such leaks have many purposes — to undercut an opponent or even an ally (this happens far more often than you might think), to send up a trial balloon to see what the public reaction is, to put pressure on someone else within the government, to put up a false front suggesting that Congress or the administration is about to do some extreme action X in order to make it more palatable for them to do less extreme action Y (this is a standard negotiating technique) and so forth. Strategic leaks are a routine part of how Washington works.
Every once in a while, a leak is not sanctioned or strategic. On relatively rare occasions, someone leaks information because they see something going on that is illegal or unjustified and they think the public should know about it. The most famous examples would be Daniel Ellsberg, who leaked the Pentagon Papers, and Deep Throat, who leaked all that information that sparked Watergate and brought Nixon down.
But here’s the thing: it’s often very difficult, if not impossible, for a reporter to know which is which. Every source says the same thing: “Okay, I’m going to tell you this, but you can’t link my name to the story. I could get fired for giving you this information.” So what happens when this kind of broad seizure of phone records takes place? It doesn’t stop the strategic leaking because those people already know they won’t be targeted for investigation (the government only prosecutes those who leak stuff they don’t want leaked). But it does put a big chill on those who might otherwise be inclined to leak important information about genuine illegality and misconduct. The more likely they think they are to get caught, the less likely they are to make the decision to reveal what is going on because they face serious consequences, including going to prison.
Now think for a moment about how different our history would be without such whistleblowers. How much illegal conduct by our government would we not know about? More than 100 reporters may have lost valuable sources over this. What will we not find out that we might otherwise have found out as a result? That’s why this is a story.