Seizure of media records shows a trust betrayed

May 21, 2013 

The American press takes its watchdog role on all levels of government seriously, as should every citizen who values the right to free speech. Implicit in that process is the protection of reporters’ sources and the identities of whistle-blowing citizens.

Now more than ever, national security agencies and those fighting terrorism need an open and free press.

In an age in which the privacy rights of individuals are being eroded in the name of security, an open press holds government accountable and highlights what happens as a result of these sacrificed freedoms. This should compel security agencies to provide and ensure transparency for clear and unbiased reporting that establishes creditability and accountability of their successful and unsuccessful operations.

The Obama administration’s wide-ranging and covert fishing expedition into the personal phone records of reporters and editors at The Associated Press betrayed a long-standing relationship between the press and the government over matters of national security and criminal activity.

If a 2012 AP story about a CIA operation in Yemen that foiled an airplane bomb plot threatened national security, the Department of Justice had justification for pinpointing the source of the leaked information. In such cases, the DOJ has guidelines for conducting its investigation.

Under its own rule, the DOJ is obligated to provide notice whenever “a subpoena for the telephone toll records of any member of the news media is contemplated.” The rule allows an exception when notice would “pose a substantial threat to the integrity of the investigation.”

News organizations sometimes comply and other times seek an independent court ruling on whether the leaked information poses a bona fide national security threat and the records should be turned over.

The exception to the rule allows the DOJ to move quickly for purposes of preventing the destruction of documents and other evidence. That did not apply in this case. The seized records belonged to the telephone companies, so AP had no means to destroy the phone records of its reporters and editors.

It’s worrisome that the agency chose to ignore its own rule and secretly seize personal and company phone records of 100 staffers, which AP President Gary Pruitt said could have “no plausible connection to any ongoing investigation.” The clear intent was to subvert the court process.

It indicates the administration’s lack of commitment to press freedom, despite Obama’s promise late last week to resurrect federal shield law legislation protecting reporters and their confidential sources. The U.S. Senate defeated the last version of the law partly due to the president’s own objections.

A watered-down version of a shield law won’t provide any greater protections than the DOJ’s existing rules of engagement. What’s important is that everyone know the rules and reliably trust all parties to abide them.

Nothing less than the transparency of government is at stake.

If potential whistle-blowers fear exposure because they know government is secretly spying on news reporters, those people will not come forward with important information that the public has a right to know. That’s the long-term danger of the AP debacle.

The DOJ’s actions in relation to AP could have a chilling effect far beyond the walls of any newsroom.

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