Dancing Around the Tapping Question

Justice Department offers journalists few assurances concerning newsroom searches and wiretaps of reporters, as allowed under the PATRIOT Act

From the Fall 2003 issue of The News Media & The Law, page 39.

Section 215 of the USA PATRIOT Act amended the Foreign Intelligence Surveillance Act (FISA) by lowering the level of proof required for the government to obtain secret authorization to search the records of a business. Under Section 215, the FBI can seek an order requiring the production of “any tangible thing” — the law says that includes books, records, papers, documents and other items — from anyone for investigations involving foreign intelligence or international terrorism.

The person or business receiving the order is forbidden from telling anyone that the FBI sought or obtained the “tangible things.” Since the FISA order is obtained from the super-secret FISA Court, the order is essentially unappealable.

On July 26, 2002, in a written response to questions from Congressmen F. James Sensenbrenner Jr. (R-Wis.) and John Conyers Jr. (D-Mich.), Assistant Attorney General Daniel J. Bryant conceded that newspapers are not exempt from the secret court orders authorized in Section 215.

“Such an order could conceivably be served on a public library, bookstore, or newspaper, although it is unlikely that such entities maintain those types of records,” Bryant wrote. He declined to state the number of times the government has requested an order or the number of times the FISA court has granted an order.

It is unclear how Section 215 interacts with another federal statute, the Privacy Protection Act of 1980. The Privacy Protection Act states that, “notwithstanding any other law,” federal and state officers and employees are prohibited from searching or seizing a journalist’s “work product” or “documentary materials” in the journalist’s possession. There are limited exceptions, including one for offenses “relating to the national defense.” That exception may only be invoked when investigators have “probable cause to believe that the person possessing [the newsgathering] materials has committed or is committing the criminal offense to which the materials relate.”

The PATRIOT Act, on the other hand, allows for newsroom searches without proof of probable cause — or even reasonable grounds to believe — that the person whose records it seeks is engaged in criminal activity.

The PATRIOT Act also makes it easier for the government to obtain secret authorization to install phone number tracing devices and computer taps. Reporters may run a risk of having their telephone or e-mail conversations with sources intercepted by government agents if those sources are deemed suspicious.

Following are questions journalists should ask the Attorney General:

•Could a government agent use Section 215 of the PATRIOT Act to gain access to a reporter’s notes and confidential sources?

•Has the government used the law yet to search (or to attempt to search) a newsroom?

•Under what circumstances would a newsroom be searched?

•How does this law interact with the Privacy Protection Act of 1980, which generally forbids newsroom searches?

•Would a news organization be expected to abide by the gag imposed by Section 215?

•Has the government used its increased power to conduct wiretaps and computer taps to intercept communications between reporters and their sources?

•Would investigators notify reporters if such surveillance had taken place?

•Does the Justice Department continue to adhere to its own guidelines discouraging the use of subpoenas to gain access to materials collected by news media?

•How has the new terrorism legislation affected the Justice Department’s willingness to abide by those guidelines?