May 23, 2013

Phone Searches: Yes, It's Happened Before

The revelation that the U.S. Department of Justice used records of Fox News reporter's James Rosen phone calls, e-mails and security badge access to the State Department and named Rosen as a co-conspirator in the a case against accused leaker Stephen Jin-Woo Kim has combined with the revelation of subpoenas for phone records of the Associated Press in another leak investigation has led to a tizzy in the mainstream media. The government's actions have been called "outrageous," "overreaching," "unconstitutional," "Nixonian" and "stupid."

The AP and Rosen incidents are not the first time that the government has obtained reporters' telephone records. Since 2004, there have been seven reported incidents in which government investigators obtained records of journalists' telephone calls from telecommunications providers as a way of determining their sources.

These efforts were described by former National Security Agency (NSA) analyst Russell Tice, who said in a 2009 appearance on "Countdown with Keith Olbermann," that the government's monitoring of American's communications had a particular focus on "U.S. news organizations and reporters and journalists" (full interview here).

In several of these instances, the phone records were obtained by bending or ignoring the requirements of the Justice Department's policy that media phone records should be sought only if the information is essential and not available elsewhere. In such cases, government officials should try to obtain the material voluntarily from the media whenever possible, and obtaining the material without the media's cooperation requires specific approval from the Attorney General. (See 28 C.F.R. § 50.10)

In 2004, the Justice Department subpenaed the phone records of New York Times reporters Philip Shenon and Judith Miller (who of course was later involved in another, more publicized reporters' privilege case) in an investigation of leaks about the government's raids and seizure of assets of the Global Relief Foundation and Benevolence International Foundation, both Illinois-based Islamic charities accused of funding al Qeada. Unlike the recent AP case, the Justice Department informed the Times of the subpoenas to the newspaper's phone provider(s) before obtaining the information, allowing the newspaper to challenge the subpoenas. A district court judge upheld the challenge, but the Second Circuit Court of Appeals reversed. New York Times Co. v. Gonzales, 459 F.3d 160 (2d Cir. 2006) (reversing 382 F.Supp.2d 457 (S.D.N.Y. 2005)). The appeals court did this obliquely, by first ruling that "whatever rights a newspaper or reporter has to refuse disclosure in response to a subpoena extends to the newspaper's or reporter's telephone records in the possession of a third party provider," but then holding that the common law privilege previously recognized by the court did not apply in this particular case, and that there was no First Amendment privilege. The U.S. Supreme Court declined to review the case. New York Times Co. v. Gonzales, stay denied, cert. denied, 549 U.S. 1049 (2006). But by that time, the statute of limitations on any prosecution of the leakers had expired.

Also in 2004, the FBI obtained records of 1,627 phone calls over 22 months to and from seven telephone numbers of New York Times and Washington Post journalists in Indonesia, without following its policy regarding journalists' phone records. (Details on this case -- with some redactions -- are available in this 2010 report by the Justice Department's Inspector General (p.91), which criticized the FBI's methods of obtaining phone records generally. The report states (p.94) that the FBI agent involved in the Indonesia case was unaware of the DOJ regulation regarding journalists' phone records. The FBI disclosed and apologized for the lapse in 2008, and claimed that "no investigative use was made of the records, and they have now been removed from the FBI's databases." There is, however, a tantalizing paragraph in the Department of Justice report (p.102), which begins, "However, the FBI did not disclose to the reporters or their editors that ...," with the rest of the paragraph backed out.

The Department of Justice report also discusses two other instances when the FBI obtained reporters' phone records without following its procedure for obtaining such records. But many of the details of these incidents, including when they occurred, are redacted, and the incidents were not otherwise publicly disclosed.

In the first of these instances (p.104) , the FBI issued a broad subpoena to a telecommunications provider for a suspected leaker's phone records, which could have also obtained phone records of reporters. The case agent, his supervisor, and the prosecutor handling the case all knew that the suspected leaker had been in touch with the journalist who reported on the leaked material during the period covered by the subpoeoa (p.106). "However," the report states (p.105), "after service of the subpoenas, and before looking at the records, the prosecutors realized the error and impounded the records." The FBI decided against informing the reporter(s), because "any collection of the reporters' records was inadvertent and the records ... were sealed and not reviewed" (p.111). The records remained impounded until the Justice Department learned of the incident while compiling its report. The records were then examined, and it was determined that while the broad scope of the subpoenas could have captured journalists' phone records, "reporters' records were not included in the records that were produced in response to the subpoenas" (p.105). The report concluded that the decision to not notify the reporter involved "was reasonable" (p.114).

In the second incident, an individual FBI agent contacted a telecommunications provider -- the same one as in the first incident -- to determine whether an individual reporter's cell phone records included any calls with a suspected leaker.  The agent prepared and served a subpoena for the information, apparently without approval from any supervisor, and provided the reporter's name and cell phone number. The agent apparently told the investigators that he thought that approval under the DOJ policy was not required since the request was only for calls involving the alleged leaker, not all calls to and from the reporter's phone. The phone company agent informed the agent that there were no such calls. An FBI supervisor -- apparently without the knowledge of the FBI agent who had sent the original request -- then sent the request to two other telecommunications companies, although it is unclear whether these companies provided any information in response to these requests. (Ironically, the DOJ asked one of the companies to re-run the search in order to determine whether any information had been saved on the FBI database.) These searches, the report concluded, "were a clear abuse of authority, in violation of the ECPA, federal regulation, and Department policy" (p.121).

In 2006, ABC News reported that the FBI was "tracking the phone numbers" called by two of its reporters -- Brian Ross and Richard Esposito -- in order to identify confidential sources. The New York Sun confirmed that the FBI obtained such information. The FBI responded with a statement that while it routinely checks phone records of government employees, it does not do this for reporters. The next day, ABC reported that an FBI source had clarified that the agency had obtained information about the reporters' calls by tracking the phone records of suspected leakers, not the journalists' own phone records. The network also reported that the government phone records obtained by the FBI included calls with not only ABC News but also The New York Times and the Washington Post. Among the records apparently discovered by this method were phone calls involving New York Times reporter James Risen, author of the book State of War, whose appeal of a subpoena to testify in the leaks trial of former CIA officer Jeffrey Sterling is still pending. Federal prosecutors also obtained Risen's credit reports and his air travel records.

Also in 2006, the FBI sought to review the papers of deceased columnist Jack Anderson before George Washington University released them to the public. According to the columnist's son, the agency was seeking information for the prosecution of two lobbyists for leaking classified information. (That prosecution was dropped in 2009.) The FBI backed away from the request to review Anderson's papers after his family refused the request and Senators began inquiring about the effort.

In 2007, local police in St. Paul, Minnesota subpoenaed cell phone records of local television reporter Tom Lyden after the reporter obtained a police report to which he had been denied access. (The report should have been accessible under the state's Freedom of Information law.) The police obtained the records from Lyden's cell phone provider by issuing a subpoena for the records without judicial approval. Despite criticism, the police chief refused to apologize for the incident.

These are just some of the recent cases in which government officials have sought information from journalists (other list here). But, like the AP phone record subpoenas, they all involved extraordinary interpretations or application of the government's subpoena power. And they show that the government has been doing this for a while, before the recent spate of high-profile incidents.


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