On ABC News, call records, and the protection of sources

From Georgia10 at DailyKos:

In a posting on the ABC News blog, Brian Ross and Richard Esposito reveal that, according to sources, the federal government is monitoring their calls to track down confidential sources.  Is this legal? Is it something our society should condone or condemn?

In New York Times Co. v. Gonzales, 382 F.Supp.2d 457 (S.D.N.Y. 2005), the New York Times sought a declaratory judgment to protect the telephone records of two of its reporters, Judith Miller and Philip Shenon. Miller and Shenon had written articles in the aftermath of September 11th detailing how the government planned to block assets and search the offices of two Islamic charities.

Patrick Fitzgerald wanted to know who leaked this information. He argued that Miller and Shenon's reporting tipped off the charities to the searches and increased the likelihood that evidence and assets were destroyed or concealed.  As part of his investigation into the leak, he requested that Miller and Shenon voluntarily produce their phone records. They refused and eventually filed the lawsuit to determine whether their phone records were protected.

Judge Sweet ruled that indeed the phone records in that case were "protected by the qualified reporters' privilege for confidential sources, which exists pursuant to the First Amendment and federal common law." The government in that case was unable to overcome that privilege, so it could not have access to the phone records.  You can read the Washington Post article about the decision here.    

Now, of course, journalists were compelled to disclose their sources in the Plame investigation, where the court ruled that the government's interest outweighed whatever interest Miller and Cooper had in protecting their sources.

However, as Judge Sweet pointed out, when it comes to phone records, all of a journalist's confidential sources, even those wholly unrelated to the investigation, can be exposed.  Not to mention that the privacy of the individual reporter is implicated. In any event, the fact remains that the protection of a reporter's phone records has been and should be within the purview of the judicial branch, where the government can set forth evidence as to why it requires access and reporters can counter with the implications of granting that access.  With the ABC News revelation, though, it is unclear whether the government even went through the proper legal channels to access the phone records.

It may be that the government did indeed obtain a court order to access that information.  But Brian Ross reports that the government "is" tracking calls to root out confidential sources. In litigation dealing with confidential sources, the phone records sought have been confined to a specific time period; I think courts would likely reject a broad, continuous monitoring of a journalist's telephone calls.

This latest revelation, if true, demands a full investigation. Is the government indeed monitoring the call records of journalists to root out sources? If so, how many journalists are being targeted? And is it acting pursuant to a court order? To a DOJ subpoena? Or is this the latest action of a rogue executive?

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