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May 16, 2013

AP Phone Subpoenas Point to Larger Problem

(cross posted on the blog of the Counts Law Group)
The revelation that the Justice Department obtained cell and landline telephone records of several Associated Press reporters, and Attorney General Eric Holder's admission that he was "not sure" how many other searches of reporters' phone records he had approved since taking his position in 2009, is a reminder to journalists, politicians and lawyers -- and perhaps a revelation to many of them -- that reporters may not have as much legal protection for their sources as they may have thought.

Almost every state and the District of Columbia -- all but Wyoming -- provide some legal basis for journalists to protect their sources: forty states have adopted statutes providing this protection, while in nine states this protection has been created by the courts. But while several federal appeals courts have also recognized a reporters' privilege, the United States Supreme Court has not done so, and efforts to pass a federal shield law fizzled in Congress.

By getting the AP's phone records, the government was apparently trying to find out with whom the reporters communicated to determine who leaked information about CIA operations in Yemen. It's against the law for government officials to release classified information; it's not illegal, however, for reporters to receive and use such information.

The federal government has a long-standing policy -- enacted shortly after the Watergate scandal -- that it will not seek evidence in criminal cases from the media unless there is no other alternative, and then only when the attorney general signs off on the effort. The policy also urges the Justice Department to contact the media organization first and try to work out a solution. Attorney General Eric Holder said on May 14 that he had recused himself from the Yemen leaks investigation, and that Deputy Attorney General Jim Cole had approved the phone records search.

This case is just the latest example of the precarious protection the law provides for protecting journalists' sources. The press plays an essential role in our democracy, as a check and control on government. By keeping an eye on what politicians, bureaucrats, and government officials at all levels are doing -- and by trying to understand and explain why -- the media is essential to keeping our citizens -- and our voters -- informed about the issues that we face.

That's why the revelations of the AP search are so disturbing. Reporters and editors need to know that their work holding the government accountable is not going to be compromised. The government may have an interest in finding out who may have leaked classified information, even though it's long been known that the government often "overclassifies" even mundane information, that the Obama administration has undertaken more frequent and more zealous leak investigations than have all prior administrations combined, and that leak investigations are rarely successful.

Like the Judith Miller and Josh Wolfe cases before it, as well as the ongoing Jana Winter case, this latest example shows why it's important to protect reporters from having to reveal their confidential sources, and to also prevent the government from doing an "end run" around such protections.

But in its efforts to identify leakers, the government cannot be allowed to chill journalists in their work serving as a check on government power.

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