It’s being reported that Attorney General Eric Holder is quietly reaching out to an array of news organizations, executives, and First Amendment experts, as part of an ongoing review of Justice Department guidelines on the handling of national security investigations involving journalists.
In the wake of news of the startlingly broad seizure of phone records of Associated Press reporters, journalists and civil libertarians are hopeful that the new Justice guidelines that emerge provide greater protections to journalists.
But what could such guidelines and changes end up looking like? With the help of Gabe Rottman, legislative counsel for the ACLU, here are the range of options that we may see at the end of this process:
1) Revised guidelines that contain very strong protections for journalists: One of the things groups like the ACLU are hoping for is that the current Justice guidelines are revised in a way that provides for the seizure of phone records in only the narrowest of circumstances. Current guidelines allow the government to gather such records only if it is deemed to be in the public’s interest in “effective law enforcement”; if all other means of getting the information have been exhausted; only after negotiations with the media organization in question that designed to elicit the information; and in as minimally intrusive a way as possible.
Civil libertarians would like to see the guidelines tightened up so that such subpoenaing of records designed to track down anonymous leakers is only allowed if the Justice Department deems it necessary to prevent an attack that is reasonably deemed to be imminent (and not deemed so based only on speculation). They also want the Department to be required to notify the target of the subpoena immediately, with exceptions and delays allowed only in the most narrow and dangerous of circumstances.
* Revised guidelines that contain modest, but better, protections for journalists: This would represent a kind of middle ground position between the civil libertarian ideal and the status quo. In this compromise, the government could, broadly speaking, subpoena phone records and other information from media organizations, even in cases where there was no reasonable basis for believing an attack was imminent.
But there would still be stricter protections for journalists in the narrow cases where the government was seeking the identity of one of their anonymous sources in particular. In those cases, the government would need to show that learning the identity of the source would be necessary to prevent an attack or some other threat to national security at some point in the future (not necessarily an immediate one). “Specific protections for anonymous sources would be a far cry better than the current situation,” Rottman tells me. “That would be a significant improvement.”
3) A shield law passed by Congress. This is the ultimate goal of civil libertarians. Obama has asked Chuck Schumer to reintroduce a media shield law that would require Justice to notify any targeted journalists and allow them to fight any subpoena in court. However, the law would also allow the government to seek a 45 to 90 day delay in notifying journalists if necessary to preserve an ongoing investigation (though the court would have to approve any delays). And it would prevent judges from quashing subpoenas if prosecutors showed the info they were seeking might help prevent a terror attack or alleviate a threat to national security.
Civil libertarians see the shield law as imperfect, but ultimately the best of the three options. “The government is on its honor in following its own guidelines, but it’s required to follow laws passed by Congress,” Rottman says. “So a shield law by its nature is a stronger protection than internal guidelines, even strong ones.”
In truth, given today’s Congress, the shield law is unlikely to happen anytime soon. And given the broad authority to combat terrorism claimed by the Obama administration and Justice Department, the first of the three above options is also perhaps unlikely. So we’ll probably end up seeing some kind of compromise along the lines of number two.