WASHINGTON – Government leak hunters have been putting pressure on journalists’ ability to get their jobs done for a generation – a boost fueled by changing technology and troubled national security issues that emerged after the September 11, 2001 attacks has been. Now these tensions have reached a turning point.
Recent revelations about aggressive moves secretly taken by the Justice Department under President Donald J. Trump while searching for confidential sources from reporters – The New York Times, CNN and The Washington Post – sparked backlash from above. President Biden ordered prosecutors to stop seizing reporters’ phone and email records.
But Mr. Biden’s sweeping vow to ban a practice he described as “simply, simply wrong” left crucial questions unanswered. Including: How far will prosecutors define the journalistic activities to which the new protection applies? And will the changes be easy or difficult to undo for future administration?
“How this is institutionalized or codified is crucial,” said Jameel Jaffer, director of the Knight First Amendment Institute at Columbia University. “That kind of protection shouldn’t be a matter of executive mercy.”
Anchored in the First Amendment, the role of the free press to bring to light information that goes beyond what those in power authorize for publication is a fundamental principle of the American self-government system. In the testimony of the Senate Last week, Attorney General Merrick B. Garland said the transparency of investigative journalism about “wrongdoing and errors in government” gives people confidence in democracy.
An essential task for journalists reporting on such material is to speak to officials who are not authorized to speak publicly about government affairs and to maintain their confidentiality. Leaked law enforcement and the seizure of communications data from journalists not only endanger certain sources, but can also silence others with newsworthy information.
But the clash of recent events – which includes the Trump-era bias towards Democratic lawmakers and aides suspected of being sources of reporters and extraordinary gag orders placed on Times and CNN executives in battles for data that spilled over into the Biden era – which an inspector general is investigating – has made it clear how fragile the protection of journalism is in the 21st century.
Mr. Biden has vowed a major correction of course. Mr. Garland, the as a judge at the Federal Court of Appeal in 2005, stressed “the public interest in protecting” sources by reporters in order to avoid deterring the disclosure of information with “public concern”, endorsed these efforts and recognized last week that “there are some There are questions of definition, but I think they “can be solved.”
The unresolved details are expected to be the focus of a meeting Monday between Mr Garland and the leaders of The Times, The Post and CNN.
One question is whether Mr. Garland will replace an ordinance from the Justice Department that allows the confiscation of information from reporters who can reveal their sources in leak investigations under certain conditions – or leave them intact and simply ban this technique for the time being.
Mr. Garland has talked about just issuing “some kind of memorandum, apparently from me.” If he goes down that route, the changes made by the Biden government may prove fleeting. With or without notice to the public, he or a successor could later revoke his memo or make an exception.
A regulatory change would be an intermediate step. It would take more red tape to undo it and the public would be more likely to learn if it were undone. Mr. Garland could change the departmental rules himself.
For an even more robust change, however, he would need the help of Congress: to pass the ban as a new law.
There are precedents. After the Supreme Court upheld a police search of a newsroom in 1980 to search for unpublished photos of a protest that turned violent, Congress banned law enforcement from seizing journalists’ work unless a journalist was suspected of a crime.
Important details about the scope and limits of new restrictions on prosecutors also remain unresolved.
It’s clear whether a reporter’s information is safe from investigators depends on the circumstances. For example, investigators can continue to seize communications records from criminal suspects who happen to be reporters.
“In developing this policy, we need to distinguish between reporters doing their jobs and reporters who commit crimes unrelated to the leak,” Garland said.
But other issues are grimmer. Among them is what counts as reporters “doing their job” under the new safeguards. Defining journalism in the internet age – when it is no longer necessary to have a print shop or television studio to disseminate information – is notoriously difficult.
Bloggers and self-proclaimed citizen journalists aren’t the only categories blurring the lines. For example, it is unclear whether the Biden government intends to extend the shield to facilities like RT, the Kremlin-funded intelligence service widely seen as an outlet for Russian propaganda.
Mr. Jaffer highlighted a related question: How broadly will the department define leak testing to which the new directive will apply? While a government official who makes public decisions should know a secret and give it to a reporter without permission, it clearly leaks, which if the F.B.I. instead suspects that the reporter’s source is a hacker or a foreign agent?
Given the ambiguity of what qualifies as a leak investigation, Jaffer said, “It is possible that the new rules will allow them to get a reporter’s record, even if they think the reporter is a real reporter who is just does his job. “
The recent events that prompted Mr. Biden’s vows were the culmination of a major shift in the government’s handling of unauthorized disclosure of official secrets that has developed over nearly two decades.
Few argue that it is unjustified for the government, like any other organization, to try to prevent excessive unauthorized disclosure. But for most of American history, it has done so through administrative measures, such as threats of losing a security clearance or job, rather than treating it as a crime.
The prosecution first convicted an officer in 1985 for violating the Espionage Act for having leaked to the news media – as opposed to espionage – and that case stood alone for another generation. But from the midst of the George W. Bush administration and until the Obama and Trump presidencies, it became routine to send leaks to jail.
This change was partly due to the legally and politically charged problems that emerged in the post-September period. 11 period, such as the Iraq war, torture and unconditional surveillance. The Bush Justice Department established a task force dedicated to tracking down high-level national security vulnerabilities and helping to transform the culture of the bureaucracy.
The change also resulted from the communication of the 21st century, whose flood of electronic traces – “metadata” showing who contacted whom and when, who viewed or printed out a classified computer file – made it easier for the FBI. Identify suspects. (Of course, the encryption made it even more difficult for the agents to eavesdrop on the content of the communication.)
Under the resulting pressure, several cracks in the protection of journalism have formed. One is that investigators have increasingly tried to seize data via phone calls and emails from reporters.
Prosecutors sometimes gave news organizations advance notice of their intentions, resulting in hearings and litigation, including a 2006 Court of Appeal ruling confirming a subpoena on a Times reporter’s phone call. However, the statute of limitations has expired and the investigations have ended.
Prosecutors have also avoided fighting for so long, arguing that prior information would harm an investigation, and without it, secretly confiscated reporter data from communications companies. Examples include the Associated Press seizure of Obama-era phone data announced in 2013 – and at least four Trump-era leak investigations.
Prosecutors have also summoned reporters to testify about their sources.
In 2005, a Times reporter was jailed for 85 days for refusing to comply with a subpoena asking her to speak through a confidential source. In a 2013 case involving another Times reporter, the Justice Department won an appeals court ruling that found there was no “reporter privilege” that would allow federal judges to overturn such subpoenas.
The description of the Biden government’s new policy – that prosecutors “will not initiate mandatory legal proceedings in leak investigations to obtain source information from members of the news media doing their job” – appears to prohibit such subpoenas from reporters.
It is less clear whether Mr Garland intends to face the growing threat of prosecuting reporters for writing about government secrets.
In theory, several laws could be used to prosecute reporters for disclosing national security secrets, but concerns about the First Amendment prevented prosecutors from testing that idea. However, cracks have also formed in this barrier.
After the Times exposed the post-September 11th 2001 secret surveillance under the Bush administration, some conservatives called for the newspaper and its reporters to be prosecuted.
In 2013, it came to light that the Obama Justice Department had a Fox News reporter identified as a criminal conspirator in its source under a search warrant. It was then that conservatives joined in to express their outrage.
The Justice Department said prosecutors never intended to prosecute the reporter, but instead portrayed him as a criminal in order to circumvent the 1980 law prohibiting search warrants on reporters’ work materials; it makes an exception if the reporter is suspected of a crime. Attorney General Eric H. Holder Jr. forbade the loophole.
But the specter of indictment of reporters returned in 2019 when Attorney General William P. Barr’s division expanded a hacker conspiracy charge against Julian Assange, founder of WikiLeaks, to include his journalistic records of obtaining and publishing classified information as a crime to treat.
Obama-era officials had considered indicting Mr. Assange for publishing leaked military and diplomatic files, but were concerned about setting a precedent that could damage mainstream news outlets, which sometimes publish government secrets like The Times. The Trump administration was not deterred by this prospect, however.
For now, the First Amendment issues are on hold as Mr Assange fights extradition from Britain. Shortly after the Biden administration took office, the Justice Department pushed ahead with these extradition efforts in a UK court and left the indictment.
But that was before Mr. Garland was sworn in – and before the recent turmoil over the escalating aggression of the Justice Department’s leak detection tactics led him to focus on devising a new approach that he said would be “the best protection for journalists ” will be. Ability to do their job in the story. “