Media groups call on government to mitigate subpoena damage

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The Reporters Committee for Freedom of the Press and major news organizations are calling on the U.S. Justice Department to return secretly subpoenaed phone records of more than 100 Associated Press journalists, to explain how such an egregious overreach could happen and outline what will be done to mitigate the damage.

In a letter to Attorney General Eric Holder and Deputy Attorney General James M. Cole, the Reporters Committee and 50 news organizations stated, “In the 30 years since the Department issued guidelines governing its subpoena practice as it relates to phone records from journalists, none of us can remember an instance where such an overreaching dragnet for newsgathering materials was deployed by the Department, particularly without notice to the affected reporters or an opportunity to seek judicial review.”

The Reporters Committee letter explained that the Attorney General’s guidelines for subpoenas to the news media are very specific in requiring the approval of the attorney general; a narrow scope of inquiry; the need to exhaust all alternative means to obtaining the information; and the balancing of law enforcement needs against the public’s right to know.

The guidelines also require the Justice Department to inform news media about the intent to subpoena phone records and negotiate for release, unless such discussions would threaten the integrity of the investigation. “By deciding that in this case involving one of the nation’s oldest and most respected news organizations that a subpoena would pose such a threat, the Department has severely harmed its working relationship with the nation’s news media, which time and time again have undertaken good-faith efforts to cooperate with government lawyers in a way that protects the public’s interest both in law enforcement and in independent and autonomous newsgathering,” the letter added.

“This inexcusable breach of respect for the independence of the news media and for the importance of confidential sources underscores the need for a federal shield law,” said Reporters Committee Chairman Tony Mauro, U.S. Supreme Court correspondent for The National Law Journal. “The fact that the Justice Department feels entitled to secretly seize the telephone records of scores of journalists runs counter to the free press guarantee of the First Amendment.

“This subpoena puts an arctic chill on the invaluable information reporters glean from confidential sources every day, thwarting the public’s right to know what its government is doing. We once thought the Attorney General’s guidelines would prevent this kind of overly broad fishing expedition, but this case makes it apparent that the guidelines are inadequate,” Mauro said.