AP Photo by Mark Lennihan
First came the disclosure of the Department of Justice’s secret subpoena of Associated Press phone records. Next, there was the news that the FBI acquired a court’s permission to search Fox News reporter James Rosen’s e-mail account by suggesting that he helped to commit a crime. And the First Amendment community was hardly comforted to learn of the National Security Agency surveillance programs leaked by former contractor Edward Snowden — programs that are raising new concerns about journalists’ ability to keep reporting activities off the record.
Media interest groups have used these stories to push government authorities to create a safer legal environment for confidential newsgathering. Now that reporter’s privilege bills are being considered in both houses of Congress and Attorney General Eric Holder has published a report recommending new Justice Department guidelines on journalist subpoenas, it looks like the strategy may be working.
Yet, the conventional wisdom in media circles holds that more must be done to protect reporters and their sources. And some say that if journalists truly want to ward off government overreach, they must aim higher than an updated Justice Department rulebook and a federal shield law.
New Justice Department guidelines on the way
AP Photo by Charles Dharapak
Journalists and First Amendment lawyers have greeted Holder’s July 12 report with mostly positive reviews, saying they are glad to see the Justice Department adopt stronger safeguards for reporters’ rights.
Media lawyer George Freeman of Jenner & Block, who previously worked for decades as counsel at The New York Times, called the policy revisions “long overdue” in light of the technological changes that have transformed newsgathering since the current guidelines were written in 1980. Unlike the old guidelines, he said, the new ones will explicitly cover journalists’ e-mail messages.
“As we saw in the AP example and the Rosen example and so on, it needed some toughening up in general,” Freeman said of the department’s set of rules on journalist subpoenas. “Obviously, it was the push-back to those two examples which gave rise to those changes.”
The report calls for a new presumption that news organizations will receive advance notice when their records are subpoenaed, unless the Attorney General determines that providing such a heads-up would have dangerous consequences or would compromise the investigation. This change appears to be a reaction to the backlash over the AP subpoena, which was concealed from the news organization for months.
Meanwhile, the report raises new procedural hurdles for prosecutors who want to search journalists’ materials, and it states that the Justice Department will not use the Privacy Protection Act’s “suspect exception” unless the journalist being targeted is “the focus of a criminal investigation for conduct not connected to ordinary newsgathering activities.”
The suspect exception is the provision of the PPA that allows prosecutors to access the records of journalists who are suspected of crimes. The FBI used it in 2010 to search Rosen’s e-mail account, labeling him as a probable “co-conspirator” in an unauthorized disclosure allegedly committed by State Department analyst Stephen Kim, The Washington Post revealed in May.
Holder also promises in the report to establish a News Media Dialogue Group with annual meetings to include both journalists and department lawyers.
Barbara Wall, senior associate general counsel at Gannett Co., said journalists and media lawyers should welcome the opportunity to exchange ideas with the Justice Department.
“I think it can be a useful opportunity to raise issues that maybe are not so serious that they require coalitions to address, but rather the ongoing tensions that are inevitable in the relationship between the department of justice and reporters,” she said.
For now, the next step will be for the Justice Department to produce updated policy statement for the Code of Federal Regulations, said media lawyer Kurt Wimmer, who represents the Newspaper Association of America. The department will probably handle this task internally, without outside input, he added.
The Newspaper Association was one of more than 50 media organizations that joined a coalition led by the Reporters Committee for Freedom of the Press in calling for policy changes in response to the AP investigation.
After the Justice Department published its report, the Reporters Committee said in a statement that Holder’s recommendations were a sign of progress but further changes were still necessary.
“The proposal announced by the Attorney General today adopts several improvements to the existing guidelines and would provide additional protections to working journalists,” the statement reads. “We continue to believe that an impartial judge should be involved when there is a demand for a reporter’s records because so many important rights hinge on the ability to test the government’s need for records before they are seized.”
In other words: Justice Department guidelines are no substitute for a federal reporter’s privilege.
Toward a federal shield law
In both the House and the Senate, lawmakers are considering versions of the Free Flow of Information Act of 2013. These bills, like similar proposals that died in past sessions of Congress, would grant journalists a qualified privilege to protect their newsgathering documents and the identities of their confidential sources. A federal subpoena demanding that a reporter turn over records or testify in court would be subject to judicial review.
Wimmer said that even if the Justice Department updates its internal rules as promised, journalists will still need a federal shield law. Without one, he said, reporters are at risk of finding themselves unable to vindicate their rights.
“If the department doesn’t follow its guidelines, you don’t have any recourse,” he said. “A subpoena issued that doesn’t follow the guidelines is still a valid subpoena.”
Wall added another reason to keep pressing for a shield law in the wake of Holder’s report: the Justice Department is not alone in targeting journalists with federal subpoenas. Particularly in federal civil trials involving private litigants, she said, the Free Flow of Information Act could protect journalists from demands that have nothing to do with the Justice Department.
When the Senate returns from its August recess, the Judiciary Committee is expected to mark up and vote on a version of the shield bill that incorporates some of the Justice Department’s ideas on protecting journalists. This bill, as amended on Aug. 1 in response to Holder’s report, would put federal judges in charge of deciding how long the Justice Department can wait before informing journalists that their records have been subpoenaed, the latest possible deadline being 90 days after the subpoena is served.
The amended bill would also protect a broad range of reporting-related documents held by third parties, including business records like credit card bills as well as communication records.
Congress’s last effort to enact a federal reporter’s privilege failed in 2010, after shield bills passed the House and cleared the Senate Judiciary Committee. The proposal died in the Senate after WikiLeaks released thousands of classified diplomatic cables, outraging government officials and raising concerns that WikiLeaks could claim protection under a shield law.
Freeman, who lobbied for the shield law in 2009 and 2010, said that the negotiations back then focused on two major questions: who should be considered a journalist for purposes of legal protection, and under what conditions the government should be able to demand reporters’ information for national security reasons.
The current Senate bill, which Sen. Charles Schumer (D-N.Y.) introduced in May at the White House’s urging, contains a national security exception carried over verbatim from the 2010 bill. This language would allow courts to enforce subpoenas to journalists if the information being sought would help the government to prevent a terrorist attack. The House bill contains a somewhat narrower national security exception.
Freeman said that if this year’s Senate bill were amended to make the national security exception broader than the one from 2010, there would “begin to be very good arguments” against passing the bill.
“The question really is, for someone like The New York Times or The Washington Post or the major networks, is a shield law worth it if your national security exceptions are so great that they don’t really yield much protection? I think that’s the thing to look at, frankly,” he said.
Judith Miller, a Fox News commentator and former New York Times reporter who was jailed in 2005 after refusing to comply with a subpoena, said she supports reporter’s privilege legislation but is pessimistic about its impact on national security journalism.
“I think that it’ll be very useful in privacy cases, in civil cases, in non-national security criminal cases, but not so much in national security,” she said of the proposed law.
Miller talked about the Obama administration’s endorsement of shield legislation in a tone more suspicious than admiring. If the president is willing to support a shield law, she said, that may be because he knows it won’t stop the government from spying on journalists.
NSA — The big question mark
What if the government no longer had to depend on traditional subpoenas to access information about reporters’ communications with confidential sources?
As the London-based Guardian churned out articles this summer about federal surveillance programs leaked by Snowden, more and more First Amendment advocates began to worry that this scenario might already exist.
Miller said that reporters, even more than other Americans, should be alarmed by the scope of Washington’s spying power.
“Journalists should pay attention to it because our sources are being chilled and have been chilled and will be chilled by the government’s enormous ability to collect information about us and our conversations and our communications with potential sources, whether or not there is a shield law,” she said.
Reuters reported in August that a special unit of the Drug Enforcement Agency uses data collected by the NSA and other intelligence agencies to initiate investigations, then proceeds to “recreate” an alternative history of the investigation to cover up where the tip came from. Still, questions remain about the NSA’s policies on sharing information with other agencies.
Media lawyers said they don’t know whether the NSA targets journalists for special scrutiny or provides newsgathering records to prosecutors. That uncertainty, they said, is cause for concern.
“I would say that if any of these agencies give more attention to journalists than the normal person, that clearly seems to create First Amendment issues and seems clearly opposite to what both President Obama and Attorney General Holder have been talking about,” Freeman said.
Wall said that in the short term, journalists and their lawyers should pay attention to news about the NSA but not try to monopolize the discussion. The issue of government surveillance, she said, is relevant to all Americans.
“A lot’s going to happen, I think, on the subject in general,” she said. “I think we should just watch those developments and keep the concerns that we have about reporters’ records in mind as that process of review takes place.”