THE BLOG
05/20/2013 08:50 am ET Updated Jul 20, 2013

Real Outrage Is That Surveillance of AP Reporters' Calls Was Probably Legal

AP

The real outrage about the Justice Department's use of secret subpoenas for the phone records of Associated Press journalists is that, based on the information that has surfaced to date, it was probably legal.

Under federal law the Justice Department needs only a subpoena -- a piece of paper that a U.S. Attorney generates unilaterally, without any court authorization -- to obtain from phone companies and other service providers the call logs for customers. This includes essentially the same information you see on your monthly bill -- numbers dialed, calls received, duration and times of calls.

Although federal prosecutors need a court's OK to obtain the content of phone communications (and most, but not all, email communications), nothing in the relevant federal statute (the Stored Communications Act) requires a prosecutor to satisfy preconditions or to submit to judicial oversight when subpoenaing "metadata" associated with a phone number.

Also relevant are Justice Department guidelines for issuing subpoenas to the media. The guidelines, adopted in the 1970s, contain meaningful (albeit mainly procedural) limits on prosecutors' discretion. However, the guidelines are just voluntary internal policies, without the force of law. Even if prosecutors failed to follow the guidelines in the AP matter -- which is possible, perhaps probable -- that dereliction and $2 will buy AP a cup of coffee.

What about the constitution? The Supreme Court dispensed with your Fourth Amendment right to privacy in this area long ago in an obscure and regrettable decision, Smith v. Maryland (1979). The Court ruled that phone company customers have no legitimate privacy interest in phone record data that are in the hands of a third-party, like a phone company.

The AP might have an argument that the Justice Department's investigative technique infringed the news organization's first amendment rights, but that claim would depend on the willingness of the the Supreme Court to expand on key first amendment precedents (assuming, of course, that the Court even agreed to review the case).

A first amendment claim also would depend on details about the leak investigation that are still unknown. For example, did the Justice Department exhaust all alternative means of identifying the source of AP's leak before resorting to the AP subpoenas -- including, for example, obtaining the same metadata for the office, home and cellphones of all government officials who had access to the classified information leaked to AP's reporters?

Also, did the Justice Department obtain specific judicial authorization to subpoena the AP's phone records without notice to AP -- and, if so, did the government have ample justification for keeping AP in the dark, thereby preventing it from having its day in court to contest the legality of the subpoenas?

How all this will play out is unclear. But that very uncertainty means the government's actions likely have already succeeded in deterring government officials from confiding in journalists about national security matters. And that, of course, is the administration's real objective.
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Peter Scheer, a lawyer and writer, is executive director of the First Amendment Coalition (FAC), a California-based nonprofit focused on free speech and government transparency. The views expressed here do not necessarily reflect the opinions of FAC's Board.