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DOJ Subponaed AP Reporters' Phone Records

The Justice Department has disclosed to the Associated Press that it subpoenaed more than two months of phone records of several AP editors and reporters in 2012. The AP, as well as civil liberties groups, are angry.

Obtaining a broad range of telephone records in order to ferret out a government leaker is an unacceptable abuse of power. Freedom of the press is a pillar of our democracy, and that freedom often depends on confidential communications between reporters and their sources."

This foiled airline plot from Yemen in May, 2012 appears to be what triggered the phone records searches.

Update: Check out this 2010 OIG Report on fBI use of national security letters and telephone toll records. I've excerpted the part about obtaining reporters' telephone toll records here. [More...]

Update: The AP has written this letter to DOJ. It includes this paragraph:
While we evaluate our options we urgently request that you immediately return to the AP the telephone toll records that the Department subpoenaed and destroy all copies. (my emphasis)

Here are DOJ's guidelines for obtaining records from reporters.

The policies, procedures and standards governing the issuance of subpoenas to members of the news media, subpoenas for the telephone toll records of members of the news media, and the interrogation, indictment, or arrest of members of the news media are set forth in 28 C.F.R. § 50.10.
From 28 CFR 50.10(g):

(g) In requesting the Attorney General’s authorization for a subpoena for the telephone toll records of members of the news media, the following principles will apply:

(1) There should be reasonable ground to believe that a crime has been committed and that the information sought is essential to the successful investigation of that crime. The subpoena should be as narrowly drawn as possible; it should be directed at relevant information regarding a limited subject matter and should cover a reasonably limited time period. In addition, prior to seeking the Attorney General’s authorization, the government should have pursued all reasonable alternative investigation steps as required by paragraph (b) of this section.

(2) When there have been negotiations with a member of the news media whose telephone toll records are to be subpoenaed, the member shall be given reasonable and timely notice of the determination of the Attorney General to authorize the subpoena and that the government intends to issue it.

(3) When the telephone toll records of a member of the news media have been subpoenaed without the notice provided for in paragraph (e)(2) of this section, notification of the subpoena shall be given the member of the news media as soon thereafter as it is determined that such notification will no longer pose a clear and substantial threat to the integrity of the investigation. In any event, such notification shall occur within 45 days of any return made pursuant to the subpoena, except that the responsible Assistant Attorney General may authorize delay of notification for no more than an additional 45 days. (my emphasis)

The AP's objections include:
That the Department undertook this unprecedented step without providing any notice to the AP, and without taking any steps to narrow the scope of its subpoenas to matters actually relevant to an ongoing investigation, is particularly troubling.
While the telephone toll records covered a two month period in May, 2012, it's not clear when they were obtained. The AP writes:
Last Friday afternoon, AP General Counsel Laura Malone received a letter from the office of United States Attorney Ronald C. Machen Jr. advising that, at some unidentified time earlier this year, the Department obtained telephone toll records for more than 20 separate telephone lines assigned to the AP and its journalists. The records that were secretly obtained cover a full two-month period in early 2012 and, at least as described in Mr. Machen’s letter, include all such records for, among other phone lines, an AP general phone number in New York City as well as AP bureaus in New York City, Washington, D.C., Hartford, Connecticut, and at the House of Representatives.

This action was taken without advance notice to AP or to any of the affected journalists, and even after the fact no notice has been sent to individual journalists whose home phones and cell phone records were seized by the Department.

If the phone records were obtained "earlier this year" and the DOJ has 45 days, plus the option of a 45 day extension to give notice, the notice may have been timely.

I think the greater problem in the overbreadth of the records sought and obtained and DOJ's failure to narrowly tailor its records request to the perceived need for them:

The Department obtained telephone toll records for more than 20 separate telephone lines assigned to the AP and its journalists. The records that were secretly obtained cover a full two-month period in early 2012 and, at least as described in Mr. Machen’s letter, include all such records for, among other phone lines, an AP general phone number in New York City as well as AP bureaus in New York City, Washington, D.C., Hartford, Connecticut, and at the House of Representatives. This action was taken without advance notice to AP or to any of the affected journalists, and even after the fact no notice has been sent to individual journalists whose home phones and cell phone records were seized by the Department.
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  • Display: Sort:
    Just a reminder: (5.00 / 2) (#12)
    by Robot Porter on Tue May 14, 2013 at 10:40:54 AM EST
    From that arcane document the U.S. Constitution:

    Congress shall make no law .... abridging the freedom of speech, or of the press

    There is no exception related to the commission of crimes.  Or related to "secret" actions of the executive branch.

    Our founders knew of these things.  And didn't include them for a reason.

    Subpoenaed or Seized? (none / 0) (#1)
    by squeaky on Mon May 13, 2013 at 07:09:31 PM EST
    From empytwheel:

    Update: Actually, the letter itself doesn't say they were subpoenaed, and given that no notice was provided, it seems like NSLs are a likely candidate.


    Excerpt from AP (none / 0) (#2)
    by oculus on Mon May 13, 2013 at 08:51:19 PM EST
    article says subpoena but w/o notice:

    News organizations normally are notified in advance that the government wants phone records and then they enter into negotiations over the desired information. In this case, however, the government, in its letter to the AP, cited an exemption to those rules that holds that prior notification can be waived if such notice, in the exemption's wording, might "pose a substantial threat to the integrity of the investigation."


    Parent
    Gotta admit, all those kewl new superpowers, (5.00 / 1) (#3)
    by Mr Natural on Mon May 13, 2013 at 09:11:48 PM EST
    voted or acquiesced into being by the last couple of congresses, are getting a real workout from Mr. Transparency in Chief.

    Parent
    Saving Face (none / 0) (#5)
    by squeaky on Mon May 13, 2013 at 09:23:20 PM EST
    Several days after the first leaks, counter-terrorism sources confirmed to Reuters that a central role in the operation had been played by MI-5 and MI-6, Britain's ultra-secretive domestic and foreign intelligence services, whose relationship with their American counterparts has been periodically strained by concern about leaks.

    These sources acknowledged that British authorities were deeply distressed that anything at all had leaked out about the operation.

    Heads must roll..

    Obama likes to have it both ways...

    Parent

    You've hit on the main issue (5.00 / 1) (#7)
    by Slado on Tue May 14, 2013 at 08:46:33 AM EST
    Obama and his team don't mind leaks that benefit them but get reall agressive with underlings and the press when they don't.

    To me that is the central issue.   The DOJ had access to the complete workings of the AP for a two month period.

    Carl Bernstein said this morning on Morning Joe that this was done for a single purpose.   To intimidate future whistle blowers.

    Of the three scandals the Obama administration is wading through now this could be the most problematic because now the AP and major news organizations feel challenged and they will not hold back anymore when looking into the IRS or Benghazi scandals.  Why should they?  They were misled on Benghazi and the IRS in terms of who knew what and when.  

    For us who don't particularly like Obama it simply confirms that this administration likes to play hardball with its opponents and this is just more of the same.

    Parent

    Benghazi (5.00 / 1) (#13)
    by Ga6thDem on Tue May 14, 2013 at 11:07:52 AM EST
    is going nowhere except in the fevered minds of conspiracy theorists. The AP and the IRS stuff might be something.

    Parent
    please keep Benghazi off this thread (none / 0) (#14)
    by Jeralyn on Tue May 14, 2013 at 12:08:44 PM EST
    so comments stay related to the AP phone log issue. Thank you.

    Parent
    Berstein unloads (none / 0) (#8)
    by Slado on Tue May 14, 2013 at 09:00:52 AM EST
    Slado, (5.00 / 1) (#10)
    by NYShooter on Tue May 14, 2013 at 09:13:30 AM EST
    do you know what the leak was about for which Obama and Holder took this action?

    Shouldn't you and Mr. Bernstein know the subject matter before making absolutist declarations like this one?:

    "National security is always the false claim of administrations trying to hide things that people ought to know.".........C. Bernstein (Bold mine)

    Parent

    From CNN (none / 0) (#11)
    by Slado on Tue May 14, 2013 at 10:03:51 AM EST
    LINK

    Holder announced in June 2012 that he had assigned two U.S. attorneys to lead investigations into the possible leaking of state secrets, and members of Congress have complained about disclosures of electronic warfare campaigns against Iran, U.S. drone attacks overseas and Obama's personal involvement in "kill lists" of militants in Yemen and Pakistan.

    But Pruitt wrote that most of the records collected from the AP "can have no plausible connection to any ongoing investigation," and the American Civil Liberties Union called on the Justice Department to explain its actions.

    "Obtaining a broad range of telephone records in order to ferret out a government leaker is an unacceptable abuse of power," Ben Wizner, the head of the ACLU's Speech, Privacy, and Technology Project, said in a written statement. "Freedom of the press is a pillar of our democracy, and that freedom often depends on confidential communications between reporters and their sources."



    Parent
    the letter from the AP to DOJ (none / 0) (#6)
    by Jeralyn on Tue May 14, 2013 at 12:42:49 AM EST
    available here says:

    While we evaluate our options we urgently request that you immediately return to the AP the telephone toll records that the Department subpoenaed and destroy all copies.


    Parent
    Yes (none / 0) (#9)
    by squeaky on Tue May 14, 2013 at 09:05:46 AM EST
    My bad... did not see that.

    So much for: "narrowly drawn as possible; it should be directed at relevant information regarding a limited subject matter..."

    Maybe they were looking for other leaks on other stories too, like the drones hit list.

    Parent

    The press does it too (none / 0) (#15)
    by vicndabx on Tue May 14, 2013 at 05:29:25 PM EST
    NY Times Link

    A bit of the pot calling the kettle, imo.

    The AP is not Bloomberg, and is (none / 0) (#16)
    by Anne on Wed May 15, 2013 at 10:37:00 AM EST
    certainly entitled to object to what the government did; the AP doesn't have to sit down and shut up just because Bloomberg was tracking the activity of traders using its terminals.

    Two wrongs are still two wrongs - they don't cancel each other out. At least, they shouldn't.

    Parent