By Peter Scheer
Last week two reporters for ABC News reported that the FBI had secretly obtained their phone records—showing whom they had called and who had called them—in order to identify a confidential source as part of an apparent leak investigation.
Neither ABC nor the reporters, Brian Ross and Richard Esposito, had an opportunity to go to court and try to block the government’s access to the phone records—by the time they found out what the government was up to (which, ironically, they learned unofficially, through a leak from the FBI), the data were already in the agency’s hands.
How can the government do this, you ask?
The answer is to be found in the Patriot Act, which, as renewed earlier this year, expands the authority of the FBI to use “National Security Letters” to obtain from a phone company or ISP information about their customers.
On the say so of FBI higher-ups alone, the FBI can now demand “toll billing records” and “electronic communications transactional records” for any “person or entity.” National Security Letters are not subject to a warrant requirement or other judicial supervision. Requested phone records must be turned over as long as they are “relevant” to “an authorized investigation to protect,” among other things, “clandestine intelligence activities . . .” A related provision muzzles the phone company, barring disclosure “to any person” that the FBI “has sought or obtained” the information.
These provisions are custom-made for leak investigations of news stories on national security and intelligence matters. Think the New York Times’ stories revealing warrantless surveillance of phone calls by the NSA, or the Washington Post’s reporting on the CIA’s use of prisons in central European and Asian countries to hold and interrogate terrorist suspects.
Pulitzer prizes notwithstanding, the government has acknowledged launching leak investigations into the sources for both stories. A CIA employee, Mary O. McCarthy, has already been fired in connection with the Post articles. Was she identified as a confidential source through examination of the Post’s phone records? Have the New York Times’ phone records already been turned over to the FBI by the phone company, without the Times’ knowledge?
For years, lawyers representing news organizations have taken comfort from an internal Justice Department policy that requires prosecutors to negotiate with journalists over access to their records or sources. If nothing else, the government’s adherence to this policy has meant that news organizations traditionally have had advance notice of an attempt by the FBI or a grand jury to obtain their records. Advance notice has enabled news organizations to go to court to contest a government subpoena.
The Justice Department policy requiring negotiations still exists. But an inconspicuous exception to that policy has, in the case of leak investigations, become a huge loophole. Prosecutors need not negotiate with the press over access to phone records when to do so would pose “a substantial threat to the integrity of the investigation in connection with which the records are sought.” The Justice Department is apparently invoking this exception in leak cases where a journalist’s communications with a confidential source are ongoing.
The difference between having and not having advance notice of an FBI effort to obtain phone records is, in practice, the difference between being able to protect—or not—a confidential source. In 2004, for example, the New York Times successfully resisted a grand jury subpoena in an investigation of a leak to Times’ reporters (including Judith Miller, who seems to be a magnet for press subpoenas). The leak concerned plans for an imminent FBI raid of a charitable organization allegedly linked to terrorists.
The grand jury never received the phone records for the Times’ reporters. (The case is on appeal in the Second Circuit Court of Appeals). If this case arose today, and the FBI used its National Security Letter authority to pursue—from the phone company—the Times’ reporters’ calling records, they would have been turned over and the Times wouldn’t have learned of the disclosure for up to 90 days after the records were in the FBI’s hands. By that time the Times’ government source could already be fired—or indicted.
The government’s more aggressive stance in leak investigations poses real problems for reporters and news organizations that cover national security matters in a serous way. To protect confidential sources, reporters may have to forgo use of phones and email to communicate with them. Of course, face-to-face meetings also create risks of discovery, but meetings, particularly in public places, may be more ambiguous than the irrefutable evidentiary maps left by electronic communications.
One way or another, the press must learn fast how to protect confidential sources working in the Defense Department, intelligence agencies and the State Department. If those sources dry up, public debate on matters of war and peace will be hugely impoverished.
—-Peter Scheer, a lawyer and journalist, is CFAC’s executive director.