When the news broke yesterday afternoon it was at first hard to believe, yet, when one thought about it for a bit, it seemed all too part of a pattern. The Associated Press itself broke the news that the US Department of Justice had notified AP last Friday that it had secretly obtained telephone records for more than twenty separate telephone lines assigned to AP journalists and offices (both cell and home phone lines).
Their report continued, “AP is asking the DOJ for an immediate explanation of the extraordinary action and for the records to be returned to AP and all copies destroyed. AP President and CEO Gary Pruitt protested the massive intrusion into AP’s newsgathering activities in a letter to Attorney General Eric Holder…. Prosecutors have sought phone records from reporters before, but the seizure of records from such a wide array of AP offices, including general AP switchboards numbers and an office-wide shared fax line, is unusual and largely unprecedented.”
Of course, the Obama administration has aggressively gone after leakers and brought six cases against whistleblowers, more than previous administrations combined.
Pruitt (who I met several times a few years back when he headed McClatchy), wrote:
There can be no possible justification for such an overbroad collection of the telephone communications of The Associated Press and its reporters. These records potentially reveal communications with confidential sources across all of the newsgathering activities undertaken by the AP during a two-month period, provide a road map to AP’s newsgathering operations, and disclose information about AP’s activities and operations that the government has no conceivable right to know. We regard this action by the Department of Justice as a serious interference with AP’s constitutional rights to gather and report the news.
Kathleen Carroll, the longtime AP executive editor, said on MSNBC this morning: “I’ve been in this business more than thirty years and our First Amendment lawyers and our lawyers inside the AP and our CEO is also a well-known First Amendment lawyer—none of us have seen anything like this.” Glen Greewwald at The Guardian hits the DOJ, as you might expect.
While no explanation was given, speculation quickly centered on an AP scoop from last May about a foiled terror plot coming out of Yemen, involving plans to blow up an airliner bound for the United States.
Response was swift and angry—from left and right (the latter perhaps mainly happy to have another Obama “scandal” to exploit), all the way to The Daily Showlate in the dayBen Wizner, director of the ACLU Speech, Privacy, and Technology Project called it an “abuse of power.” The Newspaper Association of America, a leading trade group, declared, “These actions shock the American conscience and violate the critical freedom of the press protected by the U.S. Constitution and the Bill of Rights.”
Others defended the move, noting that it had been handled through proper channels—that is, a judge had approved it. The White House said it had no involvement in the action at all.
It is disturbing enough that the government appears to have violated its own regulations for subpoenas to the news media. However, this revelation also shows that we have a severe problem in protecting the privacy of our communications. It is critical to update our privacy laws and our understanding of the Constitution, and reflect the realities of what law enforcement can determine from our records and other metadata about our communications stored with our communications providers, be they phone companies, ISPs or social networks.