Tuesday, May 21, 2013

The administration's chipping away at the First Amendment

Two cases make up a pattern that should not be ignored. A dangerous pattern. It now seems that the administration in its commendable zeal to plug national security leaks is willing to mislead judges in their applications for a warrant.

First we had the over-reach in obtaining the records for AP journalists in order to track down the leak that led AP to report on news ahead of the administration's planned press briefing to put out the very same information. There are many now who doubt whether the AP story did indeed put the American people at risk as the administration has claimed. But on that flimsy claim, the DOJ got a sweeping subpoena that allowed it to get two months worth the phone records from AP reporters. What is really chilling is that the administration can get such a subpoena without having to persuade a judge to grant a warrant.
That these phone records even could be obtained without the AP’s awareness underscores a key feature of how the law views information related to telephone and other networked communications that can be a dangerous vulnerability for news organizations and independent journalists. While many of us may think of telephone calls as broadly “private,” these and other common communications are inevitably conducted over third-party networks, generating two legally distinct types of data: the “metadata” about the call and the “content” of the call. While the latter is protected under the general “right to privacy” of the Fourth Amendment, the former is not. This so-called “metadata” is considered the property of the network owner, and can therefore be subpoenaed directly from and disclosed by the provider without violating any constitutional protections.

“Under federal law there’s a whole category of metadata called subscriber information that the police can get with a subpoena,” says Hanni Fakhoury, a staff attorney at the Electronic Frontier Foundation who specializes on issues relating to criminal law, privacy and free speech. That metadata can include the name, address, payment method (including credit card number, if applicable), length of service, numbers dialed and call durations related a given account. Apart from one decision to the contrary, a subpoena is also generally sufficient to obtain mobile phone location information, as long as law enforcement can demonstrate that it is “relevant and material to an ongoing criminal investigation.” This detailed location information can act as a digital trace of a mobile phone owner’s movements. Pruitt’s letter indicates that some journalists’ mobile phone records were also seized by the DOJ, though whether they obtained cell-site data is unclear.
Reporters are now realizing that the government has this power to obtain their phone records without even letting the targets of the subpoena know that their records have been seized. What is truly disturbing is that in seeking the subpoena, the administration violated their own guidelines as AP's CEO Gary Pruitt said on CBS this weekend.
"...Under their own rules, they are required to narrow this request as narrowly as possible so as to not tread upon the First Amendment," he went on. "And yet they had a broad, sweeping collection, and they did it secretly. Their rules require them to come to us first but in this case they didn't, claiming an exception, saying that if they had it would have posed a substantial threat to their investigation. But they have not explained why it would and we can't understand why it would."
Pruitt went on to explain why the original story was important and why the administration didn't want it reported.
Pruitt said the AP acted "responsibly," holding the story for five days upon receiving guidance from the intelligence community that it posed a national security risk.

It was important for the American public to know about the CIA operation that thwarted an al Qaeda plot to detonate a bomb aboard a U.S.-bound airplane, he continued, because "the Department of Homeland security were telling the American public that there was no credible evidence of a terrorist plot related to the anniversary of the killing Of Osama bin Laden." That characterization was "misleading."
Now comes this story that the Washington Post reported yesterday about how the administration told a judge that it was investigating James Rosen of Fox News as a co-conspirator for violations of the 1917 Espionage Act in his reporting on the administration's determination that North Korea might respond to UN sanctions with another nuclear test.
The shock is that as part of its probe the Administration sought and obtained a warrant to search Mr. Rosen's personal email account. And it justified such a sweeping secret search by telling the judge that Mr. Rosen was part of the conspiracy merely because he acted like a journalist.

In a May 2010 affidavit in support of obtaining the Gmail search warrant, FBI agent Reginald Reyes declared that "there is probable cause to believe that the Reporter has committed or is committing a violation" of the Espionage Act of 1917 "as an aider and abettor and/or co-conspirator." The Reporter here is Mr. Rosen.

And what evidence is there to believe that Mr. Rosen is part of a spy ring? Well, declares Mr. Reyes, the reporter published a story in June 2009 saying that the U.S. knew that North Korea planned to respond to looming U.N. sanctions with another nuclear test. That U.S. knowledge was classified. But the feds almost never prosecute a journalist for disclosing classified information, not least because reporters can't be sure what's classified and what isn't.
This is a criminalization of news reporting. As Ryan Lizza writes,
Rosen was not charged with any crime, but it is unprecedented for the government, in an official court document, to accuse a reporter of breaking the law for conducting the routine business of reporting on government secrets.
As Politico reports, it seems that the reason that the administration was willing to go so far as to name Rosen as a co-conspirator was so that they could obtain the records without Rosen knowing what they were doing.
It appears the prosecutors' statements about Rosen having potentially committed a crime were aimed at allowing them to proceed through use of a search warrant rather than a grand jury subpoena or other means. Under the Privacy Protection Act of 1980, search warrants are only available to seize journalists' work products under certain circumstances, such as when the journalist himself or herself is suspected of committing certain crimes.
The man who leaked the information to Rosen was indicted in 2010 but the administration which named Rosen as a co-conspirator in their affidavit seeking the warrant now doesn't plan to indict him.

Now that the media are informed of the lengths that this administration will go to track down news, they are confronted with the reality that the very administration they've been supporting is willing to stretch and violate its own guidelines and even to mislead a judge when seeking a warrant in order to stop journalists from reporting stories that they don't want reported. As AP's Pruitt said,
"...The government has no business having control over all, monitoring all of this newsgathering information from the Associated Press," he continued. "And if they restrict that apparatus, you're right - the people of the United States will only know what the government wants them to know and that's not what the framers of the Constitution had in mind when they wrote the First Amendment."
AP reports that they've already experienced sources within the government clamming up out of fear that the administration will be able to track them down through the sorts of subpoenas that were used against AP phone records.

These two examples of how far the administration is willing to go in tracking down leakers are truly chilling examples of their willingness to chip away at the First Amendment protections for a free press. Remember that there were much more damaging stories to our national security that were leaked during the Bush administration and they never went this far in trying to access information from journalists. And this attitude towards the media is not limited to searching out leaks on national security stories. As Philip Klein writes,
These investigations are shocking when taken alone, but as as Reason’s J.D. Tuccille notes, it’s important to consider these events in their broader context of the Obama administration’s long-running war against the free press. Last year, Bloomberg reported that Attorney General Eric Holder “has prosecuted more government officials for alleged leaks under the World War I-era Espionage Act than all his predecessors combined, including law-and-order Republicans John Mitchell, Edwin Meese and John Ashcroft.” The administration has also received a failing grade for its ignoring of Freedom of Information Act requests.

Taken together, all such actions have a toll. They mean that federal officials are less likely to blow the whistle on government wrongdoing and that journalists are less likely to obtain damning information that they can pass along to the public. The suggestion by the DOJ that Rosen broke the law, if followed to its logical conclusion, would mean the end of investigative journalism in America.

During his first term, liberal journalists often remarked at how “scandal free” the administration was, despite Solyndra, Fast and Furious and other revelations. But maybe what really happened is that the administration’s concerted effort to suppress the reporting of news was actually quite successful.
Some reporters can't decide if the administration's application for a search warrant should be described as Orwellian or Kafkaesque. We're definitely not in "lightworker" territory now.

Journalists need to wake up. As Kirsten Powers describes the history of the administration's 'war on Fox News',
First they came for Fox News, and they did not speak out—because they were not Fox News. Then they came for government whistleblowers, and they did not speak out—because they were not government whistleblowers. Then they came for the maker of a YouTube video, and—okay, we know how this story ends. But how did we get here?
Turns out it’s a fairly swift sojourn from a president pushing to “delegitimize” a news organization to threatening criminal prosecution for journalistic activity by a Fox News reporter, James Rosen, to spying on Associated Press reporters. In between, the Obama administration found time to relentlessly persecute government whistleblowers and publicly harass and condemn a private American citizen for expressing his constitutionally protected speech in the form of an anti-Islam YouTube video.

Where were the media when all this began happening? With a few exceptions, they were acting as quiet enablers.
It is truly ironic that the man the media overwhelmingly supported for the presidency now leads an administration willing to limit their ability to report news on this administration. And it is even more ironic that the story that is turning the media on the administration comes from their attack on Fox News.