Wired recently reported that four members of Congress have introduced the Telephone Records Protection Act, which would require federal law enforcement to obtain a court order before obtaining telephone toll records – whether from reporters or anyone else – in an investigation.
However well-intentioned, this bill is an extreme overreaction to the frenzy over DOJ having used a "secret" subpoena to obtain telephone records of AP reporters in a national security leak case. First, grand jury subpoenas are by definition "secret" – by law, the grand jury process is conducted in private in order to protect the integrity of ongoing investigations and the reputations of innocent people who may be investigated and later exonerated. Second, DOJ guidelines require review of media subpoenas by a number of career employees at various levels of the Department before the subpoena even reaches the desk of the Attorney General or, in this case, the Deputy Attorney General, and there is no indication of any deviation from those procedures in this case.
Reasonable people can of course disagree about whether the subpoena for AP phone records should have been issued at all, or whether it should have been more narrowly tailored. And those members of Congress who have concerns about the subpoena and the impact on the First Amendment may want to consider a media shield law to provide some greater measure of protection to reporters. They may even want to consider requiring prior court approval for a subpoena to the media. But to respond to this episode by trying to preclude the use of grand jury subpoenas to obtain telephone records from anyone, in any investigation, is like trying to kill a fly with a missile.
Telephone toll records – which reflect only the numbers dialed, and not the content of any call – are the type of basic information that is used by agents and prosecutors as building blocks in criminal investigations, and law enforcement has been using grand jury subpoenas to obtain them pretty much since the telephone was invented. Law enforcement officers routinely use grand jury subpoenas to obtain many other types of evidence needed to build criminal cases, such as records of bank and other financial transactions, without prior judicial approval. That is not to say there is no judicial involvement in the subpoena process – the grand jury is supervised by a judge, and a prosecutor who misuses the grand jury is subject to significant professional consequences and will answer to the court, and likely the bar. That accountability acts as a check and balance on prosecutors and agents that makes prior court approval unnecessary.
Changing the rules to better protect reporters is a laudable goal. But the kind of across-the-board change to evidence-gathering contemplated by the Telephone Records Protection Act is a solution in search of a problem.
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