A welcome story from Charlie Savage:
Attorney General Eric H. Holder Jr., who has been criticized for the Justice Department’s aggressive tactics in secretly obtaining phone logs and e-mails of reporters as part of leak investigations, is expected to issue new guidelines on Friday that would significantly narrow the circumstances under which journalists’ records could be obtained, a Justice Department official said.
The new guidelines, which the official said would take effect almost immediately, would prevent the Federal Bureau of Investigation from portraying a reporter as a co-conspirator in a criminal leak as a way to get around a legal bar on secret search warrants for reporting materials, as an agent did in a recently revealed search warrant affidavit involving a Fox News reporter.
They would also make it harder — though not impossible — for prosecutors to obtain a journalist’s calling records from telephone companies without giving news organizations advance notice, as the department recently did in obtaining a sweeping set of phone records for reporters with The Associated Press. Notifying news organizations in advance would give them a chance to contest the request in court.
As Steve Benen notes, Congressional action on a robust shield law would be preferable, but given today’s dysfunctional Congress, that isn’t happening anytime soon. Still, this is a step forward.
Meanwhile, in the wake of new revelations that Microsoft collaborated with the NSA in datasharing more extensively than is previously known, Senator Ron Wyden, a leading civil liberties advocate, thinks there are grounds for believing the Obama administration is getting ready to back off on NSA surveillance:
Mr. Wyden now believes that the White House is beginning to recognize that the program raises so many privacy concerns that it is willing to drop it.
“I have a feeling that the administration is getting concerned about the bulk phone records collection, and that they are thinking about whether to move administratively to stop it,” he said. He added he believed that the continuing controversy prompted by [Edward] Snowden had changed the political calculus in Congress over the balance between security and civil liberties, which has been heavily weighted toward security since the Sept. 11 terrorist attacks.
“I think we are making a comeback,” Mr. Wyden said, referring to privacy and civil liberties advocates.
I don’t know if this is true or not. But as Kevin Drum notes, good news is hard to come by on the civil liberties front, so it’s worth noting.
Unfortunately, I still remain pessimistic about the chances of any real action on the NSA story. After all, the effort that is being pushed by a handful of lawmakers to get Congress and the administration to declassify the FISA court opinions authorizing NSA surveillance just doesn’t seem to be gaining any traction, in the press or among other members of Congress. Elite support for the NSA surveillance programs seems very entrenched. Many members of Congress can’t even bring themselves to support more transparency into their legal rationales, which wouldn’t even constitute opposition to the programs themselves. Even Congressional leaders who say they support declassification aren’t pushing for it with all that much urgency (which is to say, none). So it’s hard to imagine any change coming anytime soon.
But it’s good to see some movement when it comes to the Justice Department’s treatment of the media, I guess.