Disgusting Government Intrusion: DOJ Secretly Obtains Months Of AP Reporters' Phone Records
The headline is from this AP piece by Mark Sherman:

WASHINGTON (AP) -- The Justice Department secretly obtained two months of telephone records of reporters and editors for The Associated Press in what the news cooperative's top executive called a "massive and unprecedented intrusion" into how news organizations gather the news.

The records obtained by the Justice Department listed outgoing calls for the work and personal phone numbers of individual reporters, for general AP office numbers in New York, Washington and Hartford, Conn., and for the main number for the AP in the House of Representatives press gallery, according to attorneys for the AP. It was not clear if the records also included incoming calls or the duration of the calls.

In all, the government seized the records for more than 20 separate telephone lines assigned to AP and its journalists in April and May of 2012. The exact number of journalists who used the phone lines during that period is unknown, but more than 100 journalists work in the offices where phone records were targeted, on a wide array of stories about government and other matters.

In a letter of protest sent to Attorney General Eric Holder on Monday, AP President and Chief Executive Officer Gary Pruitt said the government sought and obtained information far beyond anything that could be justified by any specific investigation. He demanded the return of the phone records and destruction of all copies.

"There can be no possible justification for such an overbroad collection of the telephone communications of The Associated Press and its reporters. These records potentially reveal communications with confidential sources across all of the newsgathering activities undertaken by the AP during a two-month period, provide a road map to AP's newsgathering operations and disclose information about AP's activities and operations that the government has no conceivable right to know," Pruitt said.

Richard A. Serrano writes for the Washington Bureau of the LA Times

WASHINGTON -- Federal prosecutors secretly obtained telephone records from more than 20 lines belonging to the Associated Press and its journalists in an attempt to learn who leaked information on how the CIA thwarted an apparent terrorist plot hatched in Yemen.

The Associated Press on Monday called the action a "massive and unprecedented intrusion" into news gathering. The government subpoenaed records covering a two-month period in early 2012 from telephones in the wire service's offices in New York, Washington and Hartford, Conn., as well as the homes and cellphones of at least five reporters and an editor.

The American Civil Liberties Union called the subpoenas "an unacceptable abuse of power."

In the past, prosecutors have obtained telephone records from individual journalists, but subpoenas directed at so many telephone lines in a single leak investigation are unusual.

The records would not have included the contents of the calls, but would have shown the phone numbers of people or agencies that reporters called, and could have included numbers of those who called reporters and the length of the conversations.

Prosecutors are known to be investigating who tipped the Associated Press about a secret CIA operation that foiled a plot to bomb an airplane bound for the U.S., an attack that would have coincided with the one-year anniversary of the killing of Al Qaeda leader Osama bin Laden.

The Associated Press story, published May 7, 2012, said Al Qaeda operatives had devised a new type of bomb that would not contain metal, making it easier to evade airport security. The Associated Press reported that the terrorists had not yet selected a target city or purchased a plane ticket "when the CIA stepped in and seized the bomb."

Declan McCullagh ‏from CNET tweets an important question:

@declanm
Is there any evidence that DOJ's @AP subpoenas violated the law? If not, then shouldn't critics prioritize fixing the law? cc: @OrinKerr

Orin Kerr:

Based on what we know so far, then, I don't see much evidence of an abuse. Of course, I realize that some VC readers strongly believe that everything the government does is an abuse: All investigations are abuses unless there is proof beyond a reasonable doubt to the contrary. To not realize this is to be a pro-government lackey. Or even worse, Stewart Baker. But I would ask readers inclined to see this as an abuse to identify exactly what the government did wrong based on what we know so far. Was the DOJ wrong to investigate the case at all? If it was okay for them to investigate the case, was it wrong for them to try to find out who the AP reporters were calling? If it was okay for them to get records of who the AP reporters were calling, was it wrong for them to obtain the records from the personal and work phone numbers of all the reporters whose names were listed as being involved in the story and their editor? If it was okay for them to obtain the records of those phone lines, was the problem that the records covered two months -- and if so, what was the proper length of time the records should have covered?

I get that many people will want to use this story as a generic "DOJ abuse" story and not look too closely at it. And I also understand that those who think leaks are good things will see investigations of leaks as inherently bad. But at least based on what we know so far, I don't yet see a strong case that collecting these records was an abuse of the investigative process.

From Philip Klein at the WashEx:

It will be harder for President Obama to pin the DOJ's action on lower level bureaucrats, however, because requests to subpoena news organization records require the approval of Attorney General Eric Holder.

...So, either attorneys' ignored procedure in obtaining phone records without proper approval, or Holder directly approved an operation that involved obtaining journalists' work and personal phone records.

Shouldn't a warrant be required for this sort of thing? We have checks and balances in government for a reason -- that there's a whole lot of need for checking and balancing people's power (the people in government, that is).

Commenter Stephen_Lathrop writes at Volokh:

Of course if there were a warrant requirement, you wouldn't be searching reporters' phone records, because no probable cause. That's one piece that is wrong, warrantless searches that shouldn't be happening because there is no probable cause against the people searched.

Two more general points:

First, these kinds of warrantless searches have been enabled because technology creates electronic proxies of our private records willy-nilly. I think I'm relying on Professor Kerr when I say that to convenience prosecutors, the courts have apparently okayed ransacking the proxies, even though the originals would be off limits. I think I'm disagreeing with Professor Kerr (not to mention the courts) when I say, that's wrong.

Second, there is an aspect of the 1A free press clause that hasn't had the attention it needs. Early thinking about press freedom was mostly about protecting the expression of opinion. It wasn't until the 20th century, as far as I know, that issues relating to news gathering entered the free press debates. Those issues have proved thorny because they create contested constitutional rights, freedom-of-the-press vs. right-to-subpoena-witnesses, for instance.

The wise policy choice in handling those conflicts is not to resolve them. Instead, honor both sides. You do that by allowing court maneuvers that intrude on press news-gathering freedom, and then if press people resist, punishing them. But the key is to not punish the resistance too severely--and to do that uniformly, as a matter of wise (but informal) policy, taking note that the press people are also defending a constitutionally guaranteed right. The alternative is to pick one side to favor, as matter of policy, and thus destroy permanently the right on the other side. That's wrong, too.

Warrantless searches of electronic records circumvent any possibility of using judicial policy to protect rights that are ambiguously divided among contesting parties. So that's a fourth way that warrantless searches of press phone records are wrong.