May 142013
 May 14, 2013  Posted by  Govt, Surveillance, U.S., Workplace

Mark Sherman of the Associated Press broke the story yesterday:

The Justice Department secretly obtained two months of telephone records of reporters and editors for The Associated Press in what the news cooperative’s top executive called a “massive and unprecedented intrusion” into how news organizations gather the news.

The records obtained by the Justice Department listed outgoing calls for the work and personal phone numbers of individual reporters, for general AP office numbers in New York, Washington and Hartford, Conn., and for the main number for the AP in the House of Representatives press gallery, according to attorneys for the AP.

Read more on AP.

There will be those who reasonably point out that this is not the first time reporters’ records have been acquired without their knowledge during the investigation of a leak. But the breadth of this is raising a lot of questions and concerns as collecting phone numbers and the metadata of calls – even without their content – can be very problematic. It can have a chilling effect on a free press and make people afraid to reach out to the press to expose government corruption. As Chris Soghoian, now with the ACLU, has frequently pointed out, the media needs to enhance the security protocols they use to protect sources and communications. Will this incident lead to that kind of positive change? And as EFF notes:

The DOJ’s decision to dive deep into these call records also shows the growing need to update our privacy laws to eliminate the outmoded Third Party Doctrine and to recognize that datamining has now reached the point where it no longer makes sense to treat calling records and other metadata related to our communications as if they aren’t fully protected by the Constitution.

Update: Orin Kerr sees this as a non-story. Scott Greenfield answers him here. For me, the issue is not whether, but rather, should the DOJ be able to get records that they will use to build a criminal case without having to meet a more stringent standard than “reasonable grounds” without any court oversight? This is not unusual, of course, but it still troubles me.

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