Media • Reporters seeking to protect sources should be told when investigators subpoena evidence.
This is an archived article that was published on sltrib.com in 2013, and information in the article may be outdated. It is provided only for personal research purposes and may not be reprinted.
Good reporters build trust with key sources by making and keeping promises of anonymity in cases where matters of crucial public interest are at stake.
That's why we join journalists and other First Amendment advocates around the nation in our outrage over last week's revelation that the U.S. Justice Department, without providing notice, subpoenaed two months of records for 20 telephone lines used by the Associated Press, a media cooperative of which The Salt Lake Tribune is a member. The records included lines for four major AP bureaus as well as home and cellphones for individual AP reporters.
The Justice Department's unprecedented and overreaching action part of an investigation that sought to identify unnamed sources in a May 7, 2012, story about a thwarted terrorist plot planned for a year after Osama bin Laden died can't help but scare any government whistleblower or potential source in an important watchdog story regardless of how much they trust reporters with whom they are working.
Journalists, too, feel gobsmacked, not only because no U.S. citizen wants the government secretly examining phone records but because the Justice Department blatantly disregarded its own guidelines in this action. Perhaps most importantly, it failed to inform affected journalists of its intention to subpoena records and provide an opportunity to seek judicial review to ensure the subpoena was justified as a matter of national security.
Digital First Media, of which The Tribune is part, joined most other major U.S. news organization in signing a letter the Reporters Committee for Freedom of the Press sent U.S. Attorney Eric Holder asking for an explanation.
"The scope of this action calls into question the very integrity of Department of Justice policies toward the press and its ability to balance, on its own, its police powers against the First Amendment rights of the news media and the public's interest in reporting on all manner of government conduct," the letter said.
Journalists know that our interest in reporting matters of public concern must be weighed against the government's interest in prosecuting crime and protecting national security. Balancing these often competing interests is the intent of the 30-year-old guidelines the Justice Department is obliged to follow when seeking subpoenas for media evidence and testimony.
According to the rules, the Justice Department must have made "all reasonable attempts" to get the same information from other sources before considering a subpoena. Once it deems a subpoena is in order, the subpoena must be as narrowly focused as possible.
The Justice Department also must disclose its intent to pursue the subpoena and give reporters an opportunity to negotiate unless such negotiations would "pose a substantial threat to the integrity of the investigation."
Certainly, the 2012 AP story involved national security, but the Reporters Committee for Freedom of the Press believes the Justice Department has offered no justification for straying from the guidelines in investigating the leaks.
It wants the records immediately returned and all copies destroyed. It also wants the department to announce whether it has served any other subpoenas without disclosing such actions to those affected.
In addition, "a strong federal shield law is needed to protect reporters and their news-gathering materials in a court of law where the adversarial process ensures a fair weighting of issues," according to the letter.
We endorse these efforts, for the sake of the sources who help us fulfill our role in our democracy. It's in our interest and yours.
Lisa Carricaburu is a managing editor. Reach her at firstname.lastname@example.org or on Twitter: @lcarricaburu