DOJ Unconcerned About The Constitution, Obtained AP Reporters' Phone Records
from the freedom-of-the-press?-ha!-what's-that? dept
We’ve talked quite a bit about how the federal government has been pretty aggressively shattering any remnants of the 4th amendment, and while there are some parts of the 1st amendment that are still respected, our government doesn’t always seem so keen on that one either. Apparently, they’ve decided to kill two birds with one stone recently, in obtaining a broad collection of phone records concerning Associated Press journalists, which is almost certainly in violation of the law. The AP only just found out about this on Friday, despite the data already being obtained, and covering more than 20 separate phone lines (including work, home and mobile phones) for multiple AP journalists — and a period covering approximately two months in early 2012. The AP has sent a quite reasonably angry letter to Attorney General Holder about this collection.
There can be no possible justification for such an overbroad collection of the telephone communications of The Associated Press and its reporters. 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.
That the Department undertook this unprecedented step without providing any notice to the AP, and without taking any steps to narrow the scope of its subpoenas to matters actually relevant to an ongoing investigation, is particularly troubling.
The sheer volume of records obtained, most of which can have no plausible connection to any ongoing investigation, indicates, at a minimum, that this effort did not comply with 28 C.F.R. §50.10 and should therefore never have been undertaken in the first place. The regulations require that, in all cases and without exception, a subpoena for a reporter’s telephone toll records must be “as narrowly drawn as possible.’’ This plainly did not happen
The AP also (again, quite reasonably) notes that this appears to be a “serious interference with AP’s constitutional rights to gather and report the news” and demand that the government destroy all copies of the data it received.
This really is an incredibly broad move by the government. Especially when it comes to reporters, the government has generally respected the right for reporters to keep their sources private, even if this administration has been known to threaten reporters if they won’t reveal sources. In case you’re wondering the law here is pretty clear about the limitations on getting this kind of info.
There should be reasonable ground to believe that a crime has been committed and that the information sought is essential to the successful investigation of that crime. The 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. In addition, prior to seeking the Attorney General’s authorization, the government should have pursued all reasonable alternative investigation steps as required by paragraph (b) of this section.
I’m sure that Eric Holder will try to tapdance around this one as well, but the claims here are very serious. On the positive side, perhaps this will finally help the press wake up to the continued expansion of the federal government’s surveillance operations and their general disdain for the constitution if it helps them go after whoever they want. The press likes to go nuts when some startup accidentally leaks some data or tracks what people are doing online, but routinely ignores how the government seems to feel entitled to any bit of private data about anyone, often without a warrant. Perhaps having the press have their records taken will wake some of them up to the fact that it impacts them as well (perhaps even more than others).