We've already written about how the DOJ has a bit of history
of spying on journalists' phone records without following the rules, and that was only scratching the surface. On Monday we showed that to be the case with the revelation about the questionable spying
on a Fox News reporter. The DOJ didn't just spy on him, but also suggested he was a co-conspirator, for merely doing basic journalism. Over at Mother Jones, Julian Sanchez has an article, which was written prior to the revelation about Rosen, but talking about how everyone claiming that the DOJ's actions with the AP are "unprecedented" is probably wrong
. The Justice Department has a variety of loopholes it can jump through to claim spying on reporters is legal. Often, this seems to happen because the FBI/DOJ seem to believe that they get to interpret the rules however they
want to interpret them with little or no oversight:
Only in January 2009 did the FBI think to ask the Justice Department's in-house lawyers whether the press restrictions apply when reporter records are obtained through indirect means such as community of interest requests. Government lawyers said yes, but the FBI concluded it didn't have to tell the press in the specific case it had inquired about, because agents had not "understood at the time the subpoenas were issued that the subpoenas called for reporters' records."
As he points out, the real story around all of this might not be the "unprecedented" nature of spying on reporters, but rather how common it is, without anyone knowing that it's happening (and while the DOJ's publicly stated rules suggest that this kind of spying won't happen).
The real scandal may be just how much snooping on the media the current rules permit. To fully understand the AP seizures, the media and the public need a clearer picture of the rules governing all forms of spying on media—and how often such info-grabs have happened. Maybe the seizure of AP records is an extraordinary case. Or maybe the only extraordinary thing is that we're hearing about it.
So, instead of being outraged about just how unprecedented these events appear to be, perhaps we should be outraged over how common they probably are -- and how the DOJ appears to have a totally cavalier attitude towards spying on journalists.