Monitoring journalists' calls

Journalists, particularly those who rely on international sources, should always keep in mind that they are not exempt from secret warrants allowing officials to perform wiretaps and searches. Enacted by Congress in 1978 to regulate eavesdropping on foreign targets, the Foreign Intelligence Surveillance Act, which created a secret spy court with the power to authorize such surveillance, has over the years tilted away from its intended balance between privacy and national security concerns. Initially limited to foreign intelligence-gathering only, the post-9/11 passage of the USA PATRIOT Act increased the FISA court’s powers, expanding several categories of information that may be obtained by the court, and allowing for sharing of information by a broad range of agencies.

In 2005, The New York Times broke the story of the Bush administration’s secret policy of wiretapping the telephone conversations and e-mail communications between hundreds, perhaps even thousands, of U.S. citizens and foreigners without judicial oversight. In 2008, ABC News interviewed two former intelligence officers who admitted they had listened in on and recorded private phone calls of American journalists.      

The extent to which the government currently uses FISA to obtain journalists’ sources -- an issue of great concern to reporters who argue that the act reduces the flow of news by scaring sources from speaking -- is unknown, mainly since proceedings of the FISA court are secret. As the Bush term neared its end, however, fears among reporters and their sources began to abate, journalists said at the time.

The Attorney General stated in 2007 that the policy of warrantless wiretapping had stopped, though many privacy advocates believe it continues unabated to this day. Regardless, the standard for obtaining a FISA warrant is not significantly higher: Under the PATRIOT Act, investigators need show only that national security is a “significant purpose.” This standard applies equally to the communications of all individuals, journalists or not.

Although Justice Department officials have stated that an aspect of the PATRIOT Act allowing government officials to obtain an order from the FISA court permitting them to gather from any business all books, documents and other items related to foreign intelligence information would apply to newsrooms, it is not clear whether an Internet publication would qualify as a business subject to this provision.