Biden, Congress and the free press

By The Editorial Board

If the First Amendment’s guarantee of a free press means anything, it has to mean that the government cannot seize reporters’ phone and email records in the hope of smoking out their confidential sources. This chilling tactic, which was used with increasing frequency during both the Obama and Trump administrations, makes it easier to prosecute leaks but harder for reporters to do their job and hold leaders to account. It represents a combination of official secrecy and information control that is anathema to democracy.

So it’s a good thing that President Joe Biden has ordered a change of course, in response to multiple revelations in recent weeks that federal prosecutors under Donald Trump had secretly obtained phone and email records of journalists at CNN and The Washington Post, apparently as part of investigations into leaks of classified information. The seized records included logs of work phone numbers and email accounts, but also of reporters’ persona email accounts and home phone numbers.

“It’s simply, simply wrong,” Biden said last month of seizing reporters’ emails and phone records. “I will not let that happen.” But then The Times reported last week that the Trump Justice Department had also secretly seized the phone records of four Times reporters, covering nearly four months in 2017 — and that the investigation was continuing under the Biden administration.

The story got only worse. Two days after Biden’s Justice Department finally disclosed the seizure of the phone records, The Times revealed that the department had also secretly sought to obtain email logs of Times reporters. None of the logs were seized, but Times senior executives were subject to a gag order for three months as they and the paper’s lawyers fought to stop the seizure. When the government piles secrecy upon secrecy, one has to wonder whose interests are really being served.

The White House as a rule stays out of prosecutorial decisions. But by last weekend, Justice Department officials were scrambling to turn Biden’s promises into action. In a change to “longstanding practice,” a spokesman said Saturday, the department “will not seek compulsory legal process in leak investigations to obtain source information from members of the news media doing their jobs.”

The existing policy, which was updated in the wake of Obama-era controversies involving reporters for Fox News and The Associated Press, purports to protect the freedom of the press, both by requiring prosecutors to show that reporters’ records are essential to an investigation and by permitting the secret seizure of those records only if notifying the reporter would jeopardize that investigation.

In practice, as the latest string of seizures shows, those hurdles may not be so hard to clear. Especially when prosecutors interpret their own regulations to allow for secrecy, it’s impossible for the media and the public to know what their reasoning is, or to challenge the seizures in court.

The digital age has only complicated matters further because the records sought by the government are nearly always in the hands of third parties, like telephone and internet companies, some of which are more assiduous than others about protecting their users’ information. In this case, Google, which operates The Times’ email system, did the right thing, pushing back on the order and insisting The Times be notified.

As important as better regulation would be, it is also imperative for Congress to pass legislation protecting reporters from having to reveal their sources, and thus risk stanching the free flow of information that an open society depends on. Most states have these so-called shield laws. In some states, the reporter’s privilege is absolute, and yet law enforcement investigations still survive. But state laws don’t apply to federal prosecutions, which matters especially because national security cases fall under federal jurisdiction.

Bills proposing a federal shield law have found support from both Republicans and Democrats in recent years, as well as from this board. The point is not to give journalists free rein to publish without regard to consequences, but to protect vulnerable sources, like whistleblowers, who may be the only ones able to expose misconduct or other wrongdoing in government. Despite the clear need for such a law, all efforts to pass one have failed, getting bogged down in debates over who counts as a journalist, what counts as legitimate news-gathering and whether the media should have fewer protections in the national security context.

The Supreme Court has dropped the ball here, too. The last time the court decided a case on this issue was in 1972 — nearly a half century ago — when it ruled that reporters are entitled to no special privileges against turning over information. The court said press freedoms should be balanced against the general obligation to testify about criminal conduct. In practice, that has resulted in a mishmash of rulings by lower federal courts, and a general confusion about the state of the law. The result is that the press’s First Amendment protections extend as far as the current administration’s Justice Department decides they do. That’s upside down; the scope of a constitutional freedom should not be at the mercy of the executive branch.

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