The Public Publisher: Why DOJ's seizure of AP phone records matters

Obama's Justice Department is the latest to use the federal Espionage Act to monitor news organizations. The implications are far-reaching.
Crosscut archive image.

The screen on the phone console at the reception desk at The Associated Press Washington bureau.

Obama's Justice Department is the latest to use the federal Espionage Act to monitor news organizations. The implications are far-reaching.

Earlier this month Bruce Brown, executive director of the Reporters Committee for Freedom of the Press, was waiting to board a morning flight to San Francisco from Dulles Airport. Across the lobby he noticed Washington Post Chairman and CEO Donald Graham standing alone waiting to board the same flight.

Brown, 47, is a Harvard- and Yale-trained journalist turned lawyer who now looks out for the First Amendment rights of reporters and news organizations. Emboldened by the desire to meet a news icon, he introduced himself and the two Harvard alums had a chat over cups of Starbucks coffee.

Brown and Graham talked about a range of legal cases involving the leaking of government information to news media, including the landmark Pentagon Papers which of course Graham had some first-hand experience with. In 1971, the Post joined The New York Times in publishing a series about the Pentagon Papers, which they had obtained through a leak. Then Assistant US Attorney General William Rehnquist sought to prevent publication of the papers, but the U.S. Supreme Court, which Rehnquist would later lead, allowed publication saying that the government had failed to meet the test of prior restraint.

As they wrapped up their conversation and began to board the flight Brown and Graham acknowledged that the Pentagon Papers represented a “different generation of problems,” one where a snooping government was trying to intrude into newsrooms.

A few hours later, after landing in San Francisco, Brown said he was shocked to find message after message on his smart phone about a new government intrusion into newsrooms: the U.S. Justice Department’s seizure of two months of phone records from the Associated Press (AP).

Instead of a relaxing evening, Brown headed for the hotel where he hammered out a letter to Attorney General Eric Holder, which would be joined by 52 media organizations. Brown wrote:

“In the thirty years since the Department issued guidelines governing its subpoena practice as it relates to phone records from journalists, none of us can remember an instance where such an overreaching dragnet for newsgathering materials was deployed by the Department, particularly without notice to the affected reporters or an opportunity to seek judicial review.”

A week later Brown was in Seattle to meet with journalists and funders of his organization. We sat down in the lobby of his hotel near Seattle Center to discuss what he is learning. The most chilling discovery is that the executive branch, from administration to administration, is trying to use the federal Espionage Act to prosecute people for news gathering and reporting. The Espionage Act was used to try and enjoin the publishing of the Pentagon Papers in 1971. It was the Espionage Act that President George W. Bush’s Administration dusted off to prosecute AIPAC lobbyists. Now President Obama is using it to pursue the phone records of five AP reporters.

As a news publisher whose editors and reporters talk with government officials and other sources continuously, I am alarmed that the Justice Department appears not to have adequately explained its seizure of journalist phone records. Did the federal government exhaust all other means before trolling reporter phone logs?

Further, should I have an expectation of privacy from the phone company we use at the Crosscut offices? Are our reporters’ cell phone records safe? What privacy expectations should I have of our Internet Service Provider? We don’t cover terrorism or wars, per se, from Pioneer Square, but where will the Justice Department draw the line? It sure seems to be getting fuzzy.

Like Brown, I am not an absolutist about this issue. There are matters of national security, matters that might save many lives, that will require the government to obtain information from reporters. But our court system is in place to review those kinds of requests and to weigh them against preserving a free and independent press, a bedrock of our democracy and one that sets us apart from the goons who rule in other parts of the world.

The Montana Standard in Butte this weekend published a very informative editorial about the AP situation and the renewed efforts in Congress to pass a shield law for journalists. Proposals in the other Washington would enable a statutory privilege that could be invoked by reporters when federal authorities seek information, including the identity of a source, from a reporter engaged in news gathering activities.

The Seattle Times editorial board also spoke out last week, noting that "Washington Sens. Patty Murray and Maria Cantwell recognize the need for a shield law, and should resist attempts to water down the bill. Respecting the First Amendment requires more than empty words."

These editorials point out how seriously the Justice Department's efforts to obtain AP phone records threaten press freedoms for journalists large and small, East and West.


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About the Authors & Contributors

Greg Shaw

Greg Shaw

Greg Shaw is a senior director in Microsoft’s strategy group.