Privacy Act still misapplied against reporters

The ongoing dispute between Detroit Free Press reporter David Ashenfelter and former U.S. Attorney Richard Convertino for the names of Ashenfelter’s sources has once again raised concerns that the Privacy Act is being misapplied — to the detriment of journalists.

Convertino sued the Department of Justice in 2004, alleging that officials there violated the Privacy Act by leaking information to the press about an investigation into his conduct during a terrorism trial. Along with that suit came a subpoena to Ashenfelter for the names of the sources who leaked the information.

When Ashenfelter refused to testify, invoking both the First and Fifth Amendments, Convertino’s lawyers asked the judge to hold him in contempt. That decision is pending.

Just like former government employees Steven Hatfill and Wen Ho Lee before him, whose cases both ended in multi-million dollar settlements, Convertino has used the Privacy Act to target a journalist’s sources. The law was never intended for that purpose.

Rather, the law was enacted in 1974 to, among other things, “promote governmental respect for the privacy of citizens,” a Senate report from that year states. The report links the enactment of the law to the Watergate scandal, calling it the “symbolic catalyst of a tremendous upsurge of interest in securing the right of privacy.” So while the law attempted to protect the privacy of government employees’ personnel records, it clearly intended for this to occur in a transparent setting.

The Reporters Committee, along with a group of other media organizations, raised this misuse of the Privacy Act in a friend-of-the-court brief filed on behalf of former USA Today reporter Toni Locy, who was held in contempt last year for refusing to reveal her sources in Hatfill’s Privacy Act lawsuit.

“Privacy Act claims should be limited to their originally intended scope – improper disclosure of private personal date accumulated by the government – rather than transformed into all-purpose anti-leak remedies wielded against government speech with reporters as collateral damage,” the brief urges.

The Media Law Resource Center has also pressed the argument. In an article published in the MLRC Bulletin, attorneys Kevin Blaine, Kevin Hardy and Carl Metz explored the legislative history and the language of the Privacy Act.

“A statute preventing the dissemination of personal information in the government’s possession is not naturally read to encompass current, newsworthy information about a legitimate, ongoing criminal investigation,” the article states.

Meanwhile, in the absence of a federal shield law, the Pulitzer Prize-winning Ashenfelter continues to fight to keep the identities of his confidential sources secret. A federal judge in Michigan will hold a hearing in February to decide if Ashenfelter should be held in contempt.