Event Recap: Media Leak Investigations and the First Amendment

By Cricket X. Bidleman

Update: On Monday, July 19, U.S. Attorney General Merrick Garland announced a new policy barring federal prosecutors from seizing journalists’ records, except in rare circumstances, a development praised by press-freedom groups. The following live panel discussion took place days before the memo was released.

Journalists’ ability to protect confidential sources and keep the government from accessing their unpublished notes and other communications records is key to newsgathering and a core part of press freedom. That’s why recent revelations that the U.S. Justice Department under the Trump administration targeted numerous journalists with secret subpoenas alarmed press-freedom advocates and news organizations.

While most states have some kind of journalist shield law protections that limit when government officials and others can force reporters to turn over confidential newsgathering materials, there is no federal shield law. The Justice Department has lawful ways to seek such information in limited circumstances spelled out in internal guidelines. Whether those guidelines were followed in the newly revealed media leak investigations and what the Biden administration’s approach will be in the future was the subject of a July 13 live discussion hosted by the First Amendment Coalition and First Amendment Watch, a project of New York University’s journalism program.

FAC Executive Director David Snyder interviewed Ellen Nakashima, a national security reporter for the Washington Post, Charlie Savage, a national security reporter for the New York Times, and Gabe Rottman, director of the Technology and Press Freedom Project of the Reporters Committee for Freedom of the Press. First Amendment Watch Staff Writer Soraya Ferdman began the conversation with a brief overview of the Trump-Era record seizures, including which reporters were targeted and why this investigation stood out as a particularly egregious example of a violation of journalists’ First Amendment rights. Here’s a recap of the discussion:

In setting the stage, Snyder cited the recent history of federal authorities seizing journalists’ information, including what AP called a massive and unprecedented seizure of its journalists’ records in 2013, and another leak investigation in 2018. He described how this government intrusion into journalists’ communications can expose confidential sources and reveal other unpublished information to government officials. And that’s a problem because reporters are “depended on to root out ills in society,” Snyder said.

U.S. Justice Department guidelines allow federal officials to seek journalists’ records in some extraordinary circumstances, but they are expected to provide advance notice to a news organization, which allows newsrooms a chance to oppose seizure or try to limit the scope. When asked about the guidelines, Rottman said that they date back to the Nixon administration and have undergone updates. There have been three main components across all iterations, he said, namely “high-level of approval” from the attorney general for targeting journalists in federal investigations, a requirement officials do an exhaustive search from non-media sources first, and the idea of advance notice. The guidelines were strengthened in a key way under U.S. Attorney General Eric Holder, following outcry over the Obama administration’s journalist leak investigations, to include a presumption that advance notice will happen. 

Given that key advance-notice component of the guidelines, the burning question about the new revelations, Rottman noted, is were the guidelines followed? And what happens if it becomes clear the Justice Department didn’t follow its own internal guidelines? The only repercussions or consequences are potential administrative punishment, Rottman confirmed.

Turning to Savage, Snyder asked how the Biden administration is responding to the outcry. Savage laid out what he reported in his June 12 article about steps Garland says DOJ intends to take in order to confront the issue. Garland committed to issuing a memo to all U.S. attorneys banning compulsory legal process to get reporters’ sources. Savage noted that Garland has said publicly that a memo is an interim step.

“The strongest and most difficult policy barrier to this kind of intrusive leak investigation technique that goes after reporters’ sourcing information via their cell phone records or their emails would be a change by law,” Savage said. “Of course, it’s hard to get anything through Congress.”

Panelists discussed potential legislative action. They pointed to the Protect Reporters from Excessive State Suppression Act, or PRESS Act, introduced by U.S. Sen. Ron Wyden in June, and a companion bill, Protect Reporters from Exploitive State Spying Act, introduced in July by U.S. Rep. Jamie Raskin. Rottman said “both are particularly strong shield bills,” and that similar initiatives have had bipartisan support. Rottman said that while these measures historically tend to pass through the House of Representatives, they get hung up in the Senate over debates about the definition of news media and the outlining of appropriate exceptions to prior notice.

Nakashima, one of the reporters targeted by the Trump administration without prior notice, described her experience learning what had happened without her knowledge. She described learning this May about 2020 subpoenas targeting her and colleagues’ phone and email records from a period in 2017. A Justice Department official called to alert her she had mail in the Washington Post newsroom. “I raced to the newsroom, went downstairs to the mailroom, and found a FedEx package. It contained a one-page, one-paragraph letter. 

Nakashima’s reaction? 

“This is outrageous,” she said. “The mere fact that the Justice Department had sought my records and that of my colleagues — it’s outrageous. To the extent it put any of our sources at risk, it’s troubling.”

She added that seizure of journalists’ phone and email records is a bipartisan problem, pointing to media leak investigations going back several administrations. She described the chilling effect on potential whistleblowers, sources of information who may be exposing government wrongdoing, but also routine reporter-source interactions.

“There is a still another, less understood, way in which going after sources has a chilling effect that undermines our ability to operate as a free press, and that is that it greatly discourages sources who might otherwise take the time to talk to reporters like me and Charlie, to share valuable insights about the context for operations and policies and about the significance of developments that I might be hearing about,” Nakashima said. “Even if they’re not necessarily disclosing classified information, per se, or some bomb-shell revelations, rather just sharing their wisdom and expertise that helps inform accurate and fair and nuanced reporting, which is so critical in national security stories.” 

Snyder asked Savage to lay out what he learned about the DoJ’s attempts to keep the investigation secret. Savage spoke about a government request sent to Google, the provider of email services for many newsrooms, for the secret seizure of New York Times email records. Google resisted this effort, saying that notice should be sent to the Times. “The Biden justice department allowed senior executives [at the Times] to learn about what happened, while gagging them from talking about it internally or externally,” Savage said. This meant that most employees at the Times were unaware. 

“We are still fighting to see the filing to the judge to lay out whether the judge already knew that this investigation was public, or whether the judge was misled,” Savage said.

Lastly, Snyder asked Rottman whether records about federal investigations targeting journalists will be made more transparent, and how or whether the public can know if the government is adhering to its own policies. “There’s no indication of change,” Rottman said, describing some of the transparency problems. The Justice Department stopped putting out annual reports on the topic after 2018, he said.

More info: See coverage of the recent developments by Associated Press, Politico, Reuters, Washington Post, New York Times and a piece in Lawfare, co-authored by panelist Gabe Rottman.

Cricket X. Bidleman is a 2021 intern with the First Amendment Coalition.