Is the Seizure of AP Phone Records a Scandal?

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.

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