FAC Sues DOJ Over Trump Administration’s Secret Collection of Journalist’s Records

The First Amendment Coalition (FAC) today sued the U.S. Department of Justice (DOJ) to force the department to disclose records relating to the government’s seizure of confidential telephone and email records from New York Times reporter Ali Watkins.

The suit, filed today in federal court in San Francisco under the Freedom of Information Act (FOIA), seeks memos, emails or other documents that would shed light on why the DOJ collected Watkins’ records for months secretly, i.e., without providing her notice and an opportunity to challenge the collection in court. The DOJ’s own internal rules require such notice to journalists, except in extraordinary circumstances.

“Based on what we know now, it appears the DOJ ignored or somehow bypassed its important procedures for collecting journalists’ records—we want to know if that’s the case and, if so, why,” said FAC Executive Director David Snyder.

FAC submitted two FOIA requests, on June 13 and June 18, seeking records relating to whether and how DOJ provided any notice to Watkins or the New York Times, as well as whether the DOJ followed its own internal guidelines for using legal process to obtain confidential journalist information. The DOJ has refused to release any documents.

As has been widely reported, the DOJ collected about two years’ worth of records from Watkins’ email and wireless providers, in connection with the investigation of a U.S. Senate staffer who allegedly leaked information to the press. Department officials informed Watkins of this extraordinarily broad dragnet only months after it started collecting the information. Ordinarily, the government collects such records only after a “noticed” subpoena, where the subject of the subpoena has an opportunity to ask a court to either narrow the scope of the records collected, or to quash the subpoena altogether.

Notice to journalists in such cases is crucial because it allows them to contest the collection of confidential journalist data, which can directly threaten journalists’ ability to communicate with sources and, therefore, their ability to fulfill their constitutionally protected function of holding the government accountable.

The DOJ’s own internal guidelines recognize that “freedom of the press can be no broader than the freedom of members of the news media to investigate and report the news,” and the rules require the DOJ to provide notice to a journalist whose records it wants to collect, except in exceptional circumstances. It also requires the Attorney General to personally sign off on the collection of journalist records.

The DOJ guidelines were enacted in early 2016, after the department’s extraordinarily broad and secret collection of Associated Press and Fox News phone records prompted a major backlash from the press and civil liberties groups.

The DOJ’s investigation into Watkins is the first known instance of the Trump Administration collecting journalist data as part of an investigation into government “leaks.” It comes after Attorney General Jeff Sessions announced in August 2017 that in the first seven months of the Trump Administration, the DOJ tripled the number of investigations into “leaks” of sensitive government information–raising the specter of wide-scale collection of information from journalists, who are often the recipients of information leaked from whistleblowers and others.

The DOJ has informed FAC that its FOIA requests have been put on the “complex track,” and that it would take the department 1-2 years to respond to FAC’s requests. According to FOIA laws, agencies must present a “determination” within 20 business days of a request — a deadline that can only be extended by 10 days in “unusual circumstances.” The DOJ has failed to even provide the required “determination,” much less any of the requested records.

“It’s absolutely critical that the DOJ provide this information to the public so all can understand when, how and why the DOJ is collecting records of journalist communications—and if they are overreaching in doing so,” Snyder said.

FAC is represented in this lawsuit by Roger Myers, Leila Knox, and Heather Goldman of the law firm Bryan Cave Leighton Paisner.

Read the full lawsuit.

For more information contact:
David Snyder
Executive Director
First Amendment Coalition

Leila Knox
Heather Goldman
Bryan Cave Leighton Paisner LLP