Having meh-ed in the general direction of the controversy surrounding the FBI’s recent subpoena of Associated Press telephone records, I suppose it’s only fair to present the other side of the argument. If you can set aside the excessive hand-wringing, Lynn Oberlander, general counsel to The New Yorker, provides a thorough explanation of the AP’s legal position here. Her piece is fairly straightforward, at least from a lawyer’s perspective, but a few thoughts occurred to me as I chewed on it over the past 24 hours.
First, Oberlander points out that the decision to subpoena those phone records may have violated internal Department of Justice procedures, referring to a section of the Code of Federal Regulations, 28 C.F.R. § 50.10 (.pdf), that governs attempts to obtain information from media sources. Among other things, Section 50.10(b) provides:
All reasonable attempts should be made to obtain information from alternative sources before considering issuing a subpoena to a member of the news media, and similarly all reasonable alternative investigative steps should be taken before considering issuing a subpoena for telephone toll records of any member of the news media.
Furthermore, Section 50.10(d) directs the DOJ to negotiate with a media outlet prior to subpoenaing its telephone records – which, apparently, did not happen here.
But assuming the Department deviated from its internal rules in the AP case, it’s not entirely clear what the legal ramifications are, because DOJ’s rules aren’t always mandated by law. Recall that during the Clinton years, DOJ took the position that intelligence agencies were prohibited from sharing information gathered through the Foreign Intelligence Surveillance Act with law enforcement, which was not an altogether unreasonable rule given that information gathered through FISA might not comply with the Fourth Amendment’s restrictions on search and seizure. Eventually, however, the FISA Court of Review held (.pdf) that that rule was not, in fact, required by law.
In any event, surprising as it may seem, our government sometimes errs on the side of protecting constitutional rights to such an extent that it adopts internal rules and procedures which exceed the actual requirements of the law. Whether the provisions of 28 C.F.R. § 50.10 fall into that category or not, I lack the expertise to say. But not every violation of internal DOJ procedures is, ipso facto (as we say in the law biz), a violation of somebody’s legal rights.
Oberlander’s main argument, though, is that by subpoenaing records from telephone carriers, rather than directly from the AP, DOJ effectively deprived the AP of notice that the Department was seeking those records and thereby deprived the AP of an opportunity to interpose objections before the records were produced. Here, she and the AP have a point. A subpoena is, in effect, a court order demanding that the recipient produce records or witnesses within a certain period of time. During the period between service of the subpoena and the date on which the party must comply, the party has the opportunity to file a motion with the court to “quash” the subpoena – essentially, to void it – or for other relief, such as limiting the scope of the information or documents requested, or limiting to whom the information or documents can be disseminated. So by serving subpoenas on telephone carriers rather than on the AP directly, the AP did not have the opportunity to interpose its objections prior to the time the records were produced.
And that sounds pretty bad. But, before rushing to judgment, it’s important to understand the nature of the objections the AP could have interposed, had it had the opportunity. Most of the commentary I’ve seen so far assumes that the AP could have asserted a First Amendment right to prevent the government from subpoenaing those records, the purpose of which was to reveal who may have leaked information to the AP. Not so, according to Oberlander. Rather, she notes, federal courts have ruled that journalists do not have a constitutional right to refuse to provide telephone records to a grand jury, even if the government seeks those records to identify a journalist’s source.
Nonetheless, as Oberlander points out, journalists have a common law privilege against identifying their sources, and, the courts have held, “phone records — even those held by a third party, such as a phone company — [are] subject to the same common-law privilege that would apply to the journalists’ own records.” Common law privileges are judge-made rules that protect information from disclosure in certain contexts – like the attorney-client privilege, the doctor-patient privilege, the priest-confessor privilege. But common law privileges are not absolute, as even Oberlander concedes when she refers to a federal appellate decision holding that “any common-law privilege [applicable to a journalist’s phone records] would be not absolute but ‘qualified’ — meaning that it could be overcome by a compelling government interest.”
Which leads to two important points: First, whether the government was right or wrong to issue the subpoenas in the first place, there’s no First Amendment issue here; and, second, the AP does not have an absolute, unqualified legal right to prevent the government from subpoenaing its telephone records. So, even if the government had subpoenaed the records from the AP directly, rather than from its telephone carriers, there’s no guarantee the AP would have been able to quash those subpoenas. Obviously, from the AP’s perspective, it would have been far better to have had the opportunity to present its argument to the court in the first place; but the outcome was far from predetermined.
Finally, I take issue with the implicit assertion in Oberlander’s piece that, having been deprived of the opportunity to interpose its objections prior to the telephone companies’ compliance with the subpoenas, the AP has now lost any opportunity it will ever have to protect its legal rights. In Oberlander’s words, DOJ “chose to avoid the court system — and its independent check on the Department’s power — by serving its subpoenas directly on the phone companies without telling the A.P.,” as if subpoenas magically appear out of thin air and no court can ever address a subpoena after compliance. A subpoena, as I indicated above, is a court process, and a court therefore has supervisory authority over it, over the party who issued it, and over the party who complied. So it’s not accurate to say the AP had no means of asserting its privilege after the fact; only that the remedy – for example, requesting the court to direct the government to return or destroy the records it received – may have been unsatisfactory to the AP.
In the end, though, what we have here is exactly what I suggested in yesterday’s post: A legal dispute between two parties, each of which has legitimate interests to protect. Having differing views of the law isn’t, as Oberlander suggests, “cowardly”; it’s not, as others have suggested, evidence of tyranny. It’s just a difference of opinion.