Moral Low Ground

Civil Liberties

Stop the Justice Department’s Attack on Press Freedom

(Free Press)

(Free Press)

Josh Stearns, Free Press

It was just revealed that the Justice Department secretly obtained a huge cache of phone records from reporters and editors at the Associated Press. The AP has called this a “massive and unprecedented” violation of journalists’ constitutional right to gather and report the news.

But this is not just a journalists’ issue. It’s a democratic issue that has implications for all Americans.

The government reportedly seized call logs and records from more than 20 AP phone lines in three sites, including the agency’s main phone inside the House of Representatives press gallery. This is a huge and troubling overreach from an agency that should be protecting our rights — not trampling on them.

The Justice Department won’t discuss why it’s reviewing the journalists’ communications, but reports suggest its goal is to expose and prosecute confidential sources the Associated Press relied on for a story in 2012. But since the DoJ obtained two months of phone records from 20 different phone lines, its actions have likely uncovered hundreds of confidential sources outside that story. And the DoJ’s behavior will undoubtedly have a chilling effect on journalists and whistleblowers everywhere.

Trevor Timm at the Freedom of the Press Foundation points out that if the reports are true, the DoJ’s action constitutes the most extreme example of an administration hell-bent on prosecuting leaks. “In five years, the Obama administration has prosecuted more leakers under the Espionage Act than all other administrations combined,” he writes, “and virtually all these prosecutions have engulfed journalists one way or another.”

The Justice Department has rules on the books that dictate how it requests information from the press. According to the Associated Press:

  • Subpoenas of records of news organizations must be personally approved by the attorney general.
  • A subpoena can be considered only after “all reasonable attempts” have been made to get the same information from other sources
  • A subpoena to the media must be “as narrowly drawn as possible” and “should be directed at relevant information regarding a limited subject matter and should cover a reasonably limited time period.”
  • News organizations normally are notified in advance that the government wants phone records and then they enter into negotiations over the desired information.

While there are still questions about the process the government followed in the AP case, it seems clear that the DoJ’s actions violate many of its own guidelines.

We need a congressional investigation to learn what process the Justice Department followed and hold the DoJ accountable to its own rules. And it’s likely that those rules will need to be strengthened and given some teeth.

We should also take this opportunity to strengthen protections for press freedom. But we can’t leave it up to journalists and lawyers to fight this fight.

The Internet and new technologies have democratized media making and empowered more people to take up the tools of journalism. With more people than ever before engaged in media making, there are also more people who have a stake in protecting press freedom. This unprecedented abuse will continue unless we all speak out.

Don’t let the Justice Department violate journalists’ rights.

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