The Real Scandal: Spying on Journalists Is Legal

According to Peter Scheer, a lawyer and executive director of the First Amendment Coalition (FAC), “the real outrage about the Justice Department’s use of secret subpoenas for the phone records of Associated Press journalists is that…it was probably legal.”

Although federal prosecutors need a court’s OK to obtain the content of phone communications (and most, but not all, email communications), nothing in the relevant federal statute (the Stored Communications Act) requires a prosecutor to satisfy preconditions or to submit to judicial oversight when subpoenaing “metadata” associated with a phone number.

Also relevant are Justice Department guidelines for issuing subpoenas to the media. The guidelines, adopted in the 1970s, contain meaningful (albeit mainly procedural) limits on prosecutors’ discretion. However, the guidelines are just voluntary internal policies, without the force of law. Even if prosecutors failed to follow the guidelines in the AP matter — which is possible, perhaps probable — that dereliction and $2 will buy AP a cup of coffee.

What about the constitution? The Supreme Court dispensed with your Fourth Amendment right to privacy in this area long ago in an obscure and regrettable decision, Smith v. Maryland (1979). The Court ruled that phone company customers have no legitimate privacy interest in phone record data that are in the hands of a third-party, like a phone company.

This should be a lesson in how the so-called rule of law can often be a sham. Legal doesn’t mean good. The government has built up an entire legal edifice to legitimize all kinds of abuse, from surveillance to police brutality.

Legal or not, this scandal has undeniably underscored the Obama administration’s utter disdain for both the press and for personal privacy. The extent of dragnet-style domestic surveillance in the Obama era has been unprecedented. Julian Sanchez, a research fellow at The Cato Institute, writes in Mother Jones that the government is spying on journalists far more often than we think.

Lynn Oberlander at The New Yorker has another worthwhile piece last week about the legality of the DOJ’s actions. Read it here.

I was asked by Al Jazeera to give a short commentary on the AP snooping scandal on their program The Listening Post. The show also has interviews with journalist Jeremy Scahill, Dana Priest of The Washington Post, and Ben Wizner of the ACLU.

19 thoughts on “The Real Scandal: Spying on Journalists Is Legal”

  1. Yes and already the @#$# that sticks to Obama's shoes, um I mean the Obama apologists are out making hay of this. Erza (airhead) Klein: there's nothing to see in any of the Obama scandals. Ok and the reason there is there "nothing to see" in the AP scandal (one of the scandals – in my view the one most worthy of being a scandal). Because it's all perfectly legal!!!! Bwahaha. All perfectly legal means there's nothing to see. You can make up dumb bootlicking like this.

  2. We said that long time ago.., they are doing this to prove that they can.., because they got the justice department in their pocket, which means you can talk about the illegality of the issue but nothing more.., second is to scare all and everyone out there saying.., we are the illegality of the illegal things.., you in other hand not protected under no legal terms.

  3. Hmmm

    OK lets set the record straight The impression the media (including this author) is attempting to create is that in some way shape or form "journalists" have constitutional right that non journalists do not. Spying on journalists without a warrant is no more or less illegal than spying on you or I without a warrant. So why is the media constantly trying to create the impression that there are journalists are different?

    Journalist have NO MORE "RIGHTS" under the Constitution and Bill of Rights than any other citizen. We all that is to say every single citizen have the SAME right to free speech. Journalists have NO special "rights" got that?

    journalists, police, soldiers, politicians ARE NOT GRANTED ANY SPECIAL CIVIL "RIGHTS" UNDER THE CONSTITUTION THAT ARE DENIED TO OTHER CITIZENS. ANY SPECIAL TREATMENT HAS BEEN CREATED BY LEGISLATIVE AND JUDICIAL FIAT AND IS UNCONSTUTIONAL!!!

    WAKE UP PEOPLE……!!!!!!!! Oh if you disagree please post the specific passage from the Constitution or Bill or Rights that grants journalist greater civl rights than any other citizen.

    1. I suggest that journalists are different from ordinary folk, in as much the formers' words will be more widespread, more noticed and perhaps more motivating than the latters'. Hence the govt's greater fear and suppression of journalists than the man who shouts threats in his local bar.
      As a journalist working in the Far East, I've seen what happens to journalists who ask the wrong questions or open the wrong doors, and it's far worse than what befalls the nosy individual.

  4. This story is not about Journalists having special privilege, it’s an example of what can happen to anyone. Journalists just happen to be in the public eye and happen to be the ones who are prayed on the most using this tactic. There are things called the Shield Law that protect journalists more than a regular person since they often put themselves in direct danger that a normal person wouldn’t. See, this is how we get awry, people forget that we’re not just talking about a single subject, but a whole way of thinking.

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