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DOJ/Reporter Scandal Trashes Fourth Amendment More Than the First

Posted by brent on Wednesday, May 22nd, 2013

Tough questions posed this week to White House Press Secretary David Carney about freedom of the press concerns in the Department of Justice’s national security probe of news leaks are quite understandable: the news media properly cherishes that portion of our nation’s First Amendment rights. But the greater concerns for me as an attorney involve our Fourth Amendment rights “to be secure” in our “papers and effects” (which include electronic records of our telephone calls) and to be free from “unreasonable searches and seizures”. All quotes above are from the Fourth Amendment itself.

Law enforcement and prosecutors are the only players in the legal world who can issue subpoenas to people or businesses such as Verizon Wireless to start poking around in your personal business without first filing a lawsuit which would let you know that “the game is afoot”, as the fictional detective Sherlock Holmes was fond of saying. This is in general an acceptable government power because of the sensitive nature of criminal investigations and the need to gather information without prompting the target to start destroying evidence or tampering with witnesses. But in part because of the huge imbalance of power between government and any single citizen or business, this subpoena power is supposed to be cautiously exercised within relatively narrow boundaries. Subpoena power thus not give any government agency or worker the right to start conducting broad “fishing expeditions”. United States v. R. Enterprises, Inc., 498 U.S. 292, 111 S. Ct. 722, 112 L. Ed. 2d 795 (1991); FTC v.American Tobacco Co., 264 U.S. 298, 305-06 (1924). See also the DOJ’s own manual on grand jury subpoenas here:

A criminal investigation subpoena can seek only historical records between specific dates and must be relevant to the inquiry. Secret Service investigations into counterfeiting operations cannot properly include a subpoena of a suspect’s pharmacy records, for example.

This page on FaceBook, for example, outlines that business’s interpretation of these rules for supoenas: Without a search warrant, the only information considered valid for a law enforcement investigative subpoena is described as:

. . . basic subscriber records (defined in 18 U.S.C. Section 2703(c)(2)), which may include: name, length of service, credit card information, email address(es), and a recent login/logout IP address(es), if available.

Note that the FaceBook equivalent of telephone call logs (date and time and sender or recipient of all private messages, for example), is not considered proper. That information, and the content of postings and messages, is not to be examined without a search warrant. The executive branch’s power must be checked by judicial branch oversight.

Subpoenas are issued from the executive branch of government without direct oversight of any other branch such as the judicial, and in non-criminal cases a person can object to them and ask a judge to order it to not be followed. Thus subpoenas should be more limited in scope and focus on specific types of information than a typical search warrant which must be requested from a judge. A judge is supposed to issue a search warrant only upon “probable cause”, and the warrant itself must be one “particularly describing the place to be searched, and the persons or things to be seized”. Similar specific rules govern the issuance of arrest warrants, and as a judicial law clerk years ago, I was not afraid to reject a requested arrest warrant in those portions were its supporting affidavits failed to establish probable cause.

But in a criminal investigation, no one outside of law enforcement and the third party holding the records knows about the subpoena. If it is improper, the suspect has no ability to ask a judge to quash such a subpoena. I believe that this tips the balance of power between government and citizens in such a way as to make protections from abuse necessary.

For most criminal investigations, the entire call log list is fair game–law enforcement needs to know every phone number calling into the suspect’s line, and every number the suspect called, to sort out which of them will lead to additional evidence regarding the suspected crimes. But for subpoenas involving security leaks from a known “universe” of potential offenders (the government agency itself) on the one hand, and news reporting on the other hand as the place that published or broadcast the leaked information, I believe that First Amendment freedom of the press concerns require a more restrictive approach for subpoenas.

Rather than limiting its subpoenas to require the telephone service providers to give information related to only the work and personal telephone numbers used by the leaking government agency’s offices and employees, Attorney General Eric Holders’ investigators and prosecutors now know whether reporters were calling dial-A-prayer, high school sweethearts, the suicide hotline, or their local liquor store – every single time.

This is simply wrong and should never be tolerated in any society. We have freedom of the press as a natural or God-given right regardless of whether the current government recognizes it (Acknowledging the source of our rights in religious or atheistic terms does not alter the supremacy of those rights.) One Supreme Court interpretation of our Fourth Amendment rights uses the idea of a “reasonable expectation of privacy” which must not be invaded without a very good reason, and those invasions must be only as deep as necessary to gather the relevant information. A search warrant for someone’s stolen Heisman Trophy does not authorize anyone to start looking in your jewelry box. A subpoena of news media phone records regarding a leak should include only the telephone numbers used by the governmental workers who could have been the source of the leak, and exclude all other numbers of the reporter’s other news sources.

In my opinion, there is a Constitutional-level “shield” to protect a news reporter’s other sources from investigations unrelated to them. Freedom of the press has not been interpreted to shield reporters from revealing their sources in criminal investigations (Branzburg v. Hayes, 408 U.S. 665 (1972)), which is why some states grant that protecting with state level “shield laws”. Both Utah and Nevada (and most other states) have these laws protecting reporters’ sources, and Utah courts recognize an additional “reporter’s privilege”, while Nevada courts do not. But even the Branzburg decision which the news media despises does not allow probing into a reporter’s entire address book of sources–it relates only to specific inquiries into specific crimes. No “fishing” is allowed even under that decision.

I share the news media’s outright alarm over the prospect that a person’s occupation can somehow make them more of a potential suspect or criminal than any other misbehaving citizen (or foreign national, because the term “the people” is not limited to U.S. citizens.). Yet that is exactly how the current Justice Department views reporters. Who is next?

But I wish that the news media would fret as much about other governmental actions which “chill” the exercise of other in alienable rights of the people which are protected by other Amendments to the Constitution. There are nine other Amendments in the Bill of Writes eight of them specifically applying to us as “” or otherwise protecting our personal, privacy, property, and liberty rights. They are all important and should be treated that way in our public discourse.

Category: General Principles of Law


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