What journalists need to know about the Justice Department's seizure of AP phone records
Reviews are in: Not many people are fans of the Department of Justice's seizure of two months' worth of phone records from AP reporters. DOJ still isn't saying why it seized the records. Here are some important aspects of this story:
• Authorities don't need a warrant to request records of phone numbers called; they need only a subpoena. (Here's a handy guide from ProPublica on what data the government can seize and how.) Watergate-era reforms require authorities to seek “alternative sources before considering issuing a subpoena to a member of the news media" unless "such negotiations would not pose a substantial threat to the integrity of the investigation in connection with which the records are sought." Attorney David Schulz, who is representing the AP, "got the notice from the Justice Department last Friday," Erik Wemple writes.
Another lawyer at his firm attempted to reach out to an assistant U.S. attorney to get more details on the matter, but the prosecutor wouldn’t go beyond the information in the Justice Department’s letter to the AP.
• “Is there statutory justification for it? Yes, probably,” Carl Bernstein said Tuesday about the incursion. “Is there justification for it in terms of recognizing what the right to a free press is and what a free press means in this country? This is intimidation. It’s wrong. The president of the United States should’ve long ago put a stop to this.”
• "It's very hard to imagine what it is that this inquiry is meant to focus on when the records that they have told us they've seized represent such a broad swath of the organization's workflow," AP Vice President and Executive Editor Kathleen Carroll said in a video interview. Attorneys for AP "told us that it was unprecedented in recent years to have this level of inquiry, this many records seized, especially without the notice that is normally given."
• The story that may have kicked all this off was published last May. It revealed the CIA had stopped an Al-Qaida scheme. By "reporting the CIA’s involvement in foiling the plot," Hayes Brown writes, AP told Al Qaeda in the Arabian Peninsula (AQAP) "the CIA had a window into their activities."
The AP’s reporting also led to other stories involving an operative in place within AQAP, and details of the operations he was involved in. That operative, it was feared, would be exposed and targeted by AQAP as retribution for siding with the United States.
• Commentary: The seizure, Ben Smith writes, represents a "government version of the new political technologies that have alternately inspired and unsettled members of both parties, big data approaches that replace the old tactic of broadly targeting vast groups toward the new one of approaching voters one at a time based on sophisticate technical analyses and predictions of their political views and plans." His piece features a GIF of President Obama's face morphing into that of President Nixon. It "is exactly what Philadelphia's own Benjamin Franklin tried to warn us about -- trading liberty for security, and geting neither," Will Bunch writes.
• A couple statements: “This action is unwarranted and absolutely strikes at the heart of the press freedoms we cherish in the United States," Radio Television Digital News Association Chairman Vincent Duffy said. “This case has demonstrated the need for a federal shield law that guarantees the protection of journalists’ sources," Reporters Without Borders Secretary-General Christophe Deloire said.
• Attorney General Eric Holder is scheduled to appear before a House of Representatives oversight committee Wednesday. Expect that to be well-covered. "If they can do it to The AP, they can do [it] to any news service in the country,” U.S. Rep. Frank Wolf told The Washington Times.
• A Justice Department official shared a statement with media outlets, including Poynter, Tuesday about Holder's involvement with this case.
As the Attorney General testified in June 2012, he was interviewed by the FBI in connection with the investigation into the unauthorized disclosure of classified information. To avoid any potential appearance of a conflict of interest, the Attorney General recused himself from this matter. Since that time, this investigation has been conducted by the FBI under the direction of the U.S. Attorney and the supervision of the Deputy Attorney General, who has served as the Acting Attorney General overseeing this investigation. The decision to seek media toll records in this investigation was made by the Deputy Attorney General consistent with Department regulations and policies.
At a press conference Tuesday, Holder confirmed he'd recused himself and said "This was a very, very serious leak."
• Not totally unrelated: The American Civil Liberties Union made a FOIA request to the Justice Department for its guidelines for snooping on text messages. It received, in response, 15 blacked-out pages, Katherine Mangu-Ward reports.