As has been widely reported, the U.S. Department of Justice has disclosed that it has obtained two months' worth of telephone records from 20 separate phone lines assigned to the journalists and offices of the Associated Press. The Associated Press was not informed of the investigation before the DOJ acquired the telephone data, which could potentially reveal confidential sources and editorial strategy (among other sensitive information).

The incident has resulted in widespread condemnation of the DOJ's actions by the press and demands for accountability and reform. In response, the DOJ has asserted its commitment to abiding by applicable law and its internal policies, which require special consideration before information may be sought from members of the news media.

This is not the first time that a government investigation into a news organization's operations has led to questions about the sufficiency of protection for the press, and in fact the effects of one prior incident in particular can be seen in these recent events. Examining this incident and its consequences provides a useful lens through which to examine the breadth and limitations of government power to investigate the press.

The First Amendment and the Fourth: Zurcher v. Stanford Daily

On April 12, 1971, four police officers conducted a search of the offices of the Stanford Daily, a student newspaper published at Stanford University. The search, which was conducted pursuant to a court-ordered warrant, was related to an investigation into a disturbance on April 9, during which a group of demonstrators seized the administrative offices of the Stanford University Hospital and engaged in a physical confrontation with police. The Santa Clara County District Attorney's Office asserted probable cause to believe that the Stanford Daily might have negatives, film, and/or images of the disturbance that would assist in the identification of the protesters.

The Stanford Daily filed a civil rights action under 42 U.S.C. § 1983, asserting that the search was unconstitutional. In particular, the newspaper asserted that issuing search warrants for news organizations posed multiple threats to newsgathering, including: (1) physical disruption of the timely newsgathering and publication process; (2) chilling of confidential sources and denial of press access to restricted events; (3) deterrence of note taking and other creation of work product by reporters; (4) exposure of internal editorial decision-making to government scrutiny; and (5) self-censorship by the press to conceal the possession of information of potential interest to law enforcement. Accordingly, the newspaper argued that the First Amendment required different procedures and a higher standard to be met for the issuance of a warrant to search the records of a news organization than is ordinarily required by the Fourth Amendment.

The federal district court agreed, holding that a warrant could not be issued for materials in the possession of a newspaper not itself suspected of being involved in a crime, unless:

• it is established by affidavit would be "impracticable" to request the materials from the newspaper directly via subpoena;
• there is reason to believe that the newspaper would disregard a court order not to remove or destroy the materials sought;
• there is a clear showing that important materials will be destroyed or removed from the jurisdiction; and
• a restraining order would be futile.

The U.S. Court of Appeals for the Ninth Circuit affirmed the district court's ruling, but in Zurcher v. Stanford Daily, 436 U.S. 547 (1978) the U.S. Supreme Court reversed, holding that sufficient protections for First Amendment interests were built into the Fourth Amendment standard for issuance of a warrant:

[P]rior cases do no more than insist that the courts apply the warrant requirements with particular exactitude when First Amendment interests would be endangered by the search. As we see it, no more than this is required where the warrant requested is for the seizure of criminal evidence reasonably believed to be on the premises occupied by a newspaper. Properly administered, the preconditions for a warrant - probable cause, specificity with respect to the place to be searched and the things to be seized, and overall reasonableness - should afford sufficient protection against the harms that are assertedly threatened by warrants for searching newspaper offices.

Id. at 565.

There is some suggestion that the Court recognized that this ruling, albeit consistent with its prior interpretations of the Constitution, nevertheless might be insufficient to protect journalists. Justice White, writing for the majority, commented: "Of course, the Fourth Amendment does not prevent or advise against legislative or executive efforts to establish nonconstitutional protections against possible abuses of the search warrant procedure." Id. at 567.

The Privacy Protection Act

The United States Congress reacted swiftly to Justice White's hint with proposed legislation granting newsgatherers precisely the protection that the Court held the First Amendment did not provide. These proposals eventually resulted in the enactment of the Privacy Protection Act of 1980, 42 U.S.C. § 2000aa et seq. (the "PPA"), which creates protections against searches for the work product or other documents possessed by any "person reasonably believed to have a purpose to disseminate to the public a newspaper, book, broadcast, or other similar form of public communication, in or affecting interstate or foreign commerce." In at least one case, this language has been held to be broad enough to protect the publisher of an electronic bulletin board. See Steve Jackson Games, Inc. v. U.S. Secret Service, 816 F. Supp. 432, 440 (W.D.Tex. 1993).

The PPA distinguishes between the "work product" of these individuals, defined as materials prepared and possessed for the purpose of being communicated the public that contain the mental impressions of the person who created those materials, and other "documentary materials," defined as any material upon which information of virtually any type may be recorded in any format. See 42 U.S.C. § 2000aa-7(a, b). The issuance of a warrant for either category is subject to substantial restrictions well beyond what the Fourth Amendment requires.

Pursuant to the PPA, a newsgatherer's "work product" may not be searched or seized, even with a warrant, unless:

(1) there is probable cause to believe that the person possessing those materials has committed or is committing a crime to which the materials relate other than a crime consisting of the possession, receipt, communication, or withholding of the material itself (except where such a crime involves classified or restricted government data, or child pornography, exploitation, or trafficking); or

(2) there is reason to believe that immediate seizure of the materials is necessary to prevent death or serious bodily injury.

Similarly, a newsgatherer's "documentary materials" may be searched and seized pursuant to a warrant only under the conditions for "work product" described above, as well as when:

(3) there is reason to believe that requesting the documents from the newsgatherer by subpoena will result in the destruction, alteration, or concealment of the documents; or

(4) the government has tried to use a subpoena, the newsgatherer has refused to comply with a court order directing compliance with the subpoena, and either (a) the newsgatherer has exhausted their rights to appeal the court order or (b) further delay in production of the materials would threaten the interests of justice.

42 U.S.C. § 2000aa(a, b). Even when law enforcement decides to obtain a warrant for "documentary materials" because further attempts to pursue a subpoena would threaten the interests of justice, the government must still give a newsgatherer an opportunity to submit an affidavit challenging the issuance of the warrant. 42 U.S.C. § 2000aa(c).

A newsgatherer whose rights under the PPA have been violated has the right to file a civil action against the government body and individual state officers involved. A successful claimant is entitled to recover either actual damages or $1,000 in liquidated damages (whichever is more), plus reasonable attorneys' fees and costs. 42 U.S.C. § 2000aa-6(a, f).

The Department of Justice's Policy on Investigating News Media

Critically, the provisions of the PPA discussed above do not apply to records in the possession of third parties, such as the telephone records at issue in the recent DOJ investigation. In fact, the government is not even required to obtain a search warrant for such materials. Pursuant to the so-called "third-party doctrine," when a person voluntarily turns over information to third parties or allows those third parties to collect information about his or her activities, that person has no expectation of privacy in that information protected by the Fourth Amendment. See Smith v. Maryland, 442 U.S. 735 (1979). As a result, the government can obtain that information simply by issuing a subpoena to a telephone company or other third party. Unlike the subpoenas to newsgatherers contemplated by the PPA, which give newsgatherers the opportunity to object in court, subpoenas to third parties (such as telephone companies) could potentially bypass a news organization entirely.

The Department of Justice's discretion in this regard is not, however, wholly unfettered. Section 2000aa-11 of the PPA required the Attorney General, within six months of October 13, 1980, to issue "guidelines for the procedures to be employed by any Federal officer or employee, in connection with the investigation or prosecution of an offense, to obtain documentary materials in the private possession of a person when the person is not reasonably believed to be a suspect in such offense."

On November 19, 1980, apparently in response to this statutory command, the Attorney General promulgated as federal regulations its "Policy with regard to the issuance of subpoenas to members of the news media, subpoenas for telephone toll records of members of the news media, and the interrogation, indictment, or arrest of, members of the news media" (28 CFR § 50.10, the "Media Policy").

The Media Policy is long on rhetoric and promises of prosecutorial restraint. It begins with broad recognition of the importance of not interfering with the newsgathering function of the press:

Because freedom of the press can be no broader than the freedom of reporters to investigate and report the news, the prosecutorial power of the government should not be used in such a way that it impairs a reporter's responsibility to cover as broadly as possible controversial public issues. This policy statement is thus intended to provide protection for the news media from forms of compulsory process, whether civil or criminal, which might impair the news gathering function.
...
In determining whether to request issuance of a subpoena to a member of the news media, or for telephone toll records of any member of the news media, the approach in every case must be to strike the proper balance between the public's interest in the free dissemination of ideas and information and the public's interest in effective law enforcement and the fair administration of justice.

28 C.F.R. § 50.10(preamble, a).

The Media Policy also lays out a multistep process that the Department of Justice is supposed to follow when considering seeking the records of news organizations, including telephone toll records. With respect to telephone records, the DOJ must:

• take "all reasonable alternative investigative steps" before considering issuing a subpoena for telephone toll records of any member of the "news media";
• negotiate with the affected member of the news media before issuing a subpoena for toll records, so long as such negotiations would not undermine the integrity of the investigation for which the records are sought;
• obtain the express authorization of the Attorney General for the subpoena, based upon a determination that the information sought is essential to a criminal investigation, and a failure to obtain the information from alternative sources.

28 C.F.R. § 50.10(b, d, e, g).

In addition, if the DOJ has previously negotiated with the news media for access to telephone toll records, it must give reasonable and timely notice to the member of the news media that the Attorney General has authorized the subpoena and that the government intends to issue it. 28 C.F.R. § 50.10(g)(2). Even when to protect the integrity of an investigation negotiations did not take place, the DOJ must give notice of the subpoena as soon as disclosure will no longer threaten the investigation (although this could be after a response to the subpoena is received from a third party). 28 C.F.R. § 50.10(g)(3).

Critical Distinctions

It might at first appear that the protections of the PPA for newsgathering materials and the DOJ's Media Policy for telephone toll records are at least comparable. Although the Media Policy contemplates a subpoena rather than a warrant, it at least indicates that whenever possible the DOJ should notify the news organization in question so that the media have the opportunity to intervene and to object to a subpoena to a third party. True, the Media Policy contains no hard-line requirement of a threat to life and limb such as applies to work product; but in the context of non-work product materials, even the PPA prefers a subpoena that a newsgatherer has the chance to challenge in court to a warrant issued without any adversary process. Likewise, the PPA allows the government to work around a news organization by means of a warrant for non-work product materials if alerting the organization in advance would result in the destruction of those materials.

Nevertheless, as a matter of practice the Media Policy's protections turn out to be far less substantial, as the Associated Press has learned. We do not yet know for sure what happened inside the DOJ with respect to the AP, such as whether a determination was made that disclosing the intent to request these telephone records in advance would jeopardize an investigation or whether the Attorney General in fact authorized the issuance of subpoenas. Because the DOJ is not required to seek prior court approval for a subpoena in the way that it must for a search warrant, there was no need for the DOJ to articulate in a transparent manner whatever concerns about urgency or operational security might have existed.

And even if it turns out that rogue DOJ agents disregarded the Media Policy entirely, the Associated Press has no legal remedy. The DOJ has the authority to issue subpoenas for the information that it obtained. Although the Media Policy states that "[f]ailure to obtain the prior approval of the Attorney General may constitute grounds for an administrative reprimand or other appropriate disciplinary action," it further states that "[t]he principles set forth in [the Media Policy] are not intended to create or recognize any legally enforceable right in any person." 28 C.F.R. § 50.10(n). Even the PPA provisions that apparently motivated the Attorney General to adopt the Media Policy suggest that the Policy is only enforceable by the DOJ itself. Section 2000aa-12 of the PPA states,

Guidelines issued by the Attorney General under this subchapter shall have the full force and effect of Department of Justice regulations and any violation of these guidelines shall make the employee or officer involved subject to appropriate administrative disciplinary action. However, an issue relating to the compliance, or the failure to comply, with guidelines issued pursuant to this subchapter may not be litigated[.]

In other words, ignoring the Media Policy might result in a head or two rolling, but the AP would not be able to bring a lawsuit, much less seek statutory damages and attorneys' fees as per the PPA's protection for work product and other materials.

A third distinction between the PPA's core protections and the Media Policy is perhaps less relevant to the AP, but should be of concern to independent online journalists and news ventures. As mentioned above, the PPA uses a more-or-less function-driven definition of the journalists protected under its scope, which while still ambiguous is likely broad enough to shield online publishers. In contrast, the Media Policy simply refers to the "news media" without further definition. There is no reason to believe that the DOJ would read the Media Policy, written in 1980, to apply to anything beyond the traditional institutional definitions of the news media prevalent at that time.

Conclusion

The recent events with the Associated Press echo the experience of the Stanford Daily, with both news organizations facing intrusions into their newsgathering activities that were possibly authorized by the law but nevertheless raised serious concerns as to whether the protections of the law were sufficient.

In the case of the Stanford Daily, the response to concerns over the scope of the Fourth Amendment as applied to news media was the enactment of the strong protections of the Privacy Protection Act. Similarly, the Associated Press investigation has called attention to the fact that the DOJ's Media Policy has significant problems with transparency, accountability, and scope. As a result, we should look carefully at whether further legislative correction is required.

Jeff Hermes is the Director of the Digital Media Law Project. The author would like to thank Andy Sellars for his discussion of ideas reflected in this post.

(Photo courtesy Flickr user daftgirly pursuant to a Creative Commons CC BY-NC 2.0 license.)