15 June 2018

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US Press And Free Speech Groups Question Raid On Reporter's Records

The press and free speech advocates are asking the Justice Department to provide an explanation as to how this action strikes "the proper balance between law enforcement and free press interests," in the words of the Department's own formal guidance for handling investigations involving the news media.

Ali Watkins
Ali Watkins (image via The Cut)
Following the Justice Department's seizure of a reporter's phone and email communications without prior notice,The National Press Club, PEN America and more than a dozen other leading organizations representing professional journalists and free speech advocates are demanding an explanation from Attorney General Jeff Sessions.
"This intrusion is particularly troubling because it relates to reporting concerning alleged misdeeds by the president's campaign, raising questions about whether the content of the reporting is what occasioned this unusual level of scrutiny," the groups write in a letter sent Friday to Sessions. "Moreover, we share a concern that this will have a chilling effect on other journalists who now know that records of their calls, emails and texts may be reviewed without their knowledge, perhaps months and years after the fact.
The press and free speech advocates are asking the Justice Department to provide an explanation as to how this action strikes "the proper balance between law enforcement and free press interests," in the words of the Department's own formal guidance for handling investigations involving the news media.
"We must view this troubling incident in the context of the Trump administration's daily attacks on the role of the press in preserving our fundamental freedoms and values, said PEN America Chief Executive Officer Suzanne Nossel. "That there has been no clarity from the Justice Department on other avenues of investigation pursued before Watkins' records were seized, a move their own guidelines describe as a last resort, will inevitably have a chilling effect on journalists covering the Administration. An explanation for this course of action is crucial to the exercise of press freedom."
Last week, the New York Times reported that, as part of an investigation of alleged improper leaks of information by a congressional staffer, the Justice Department swept up years' worth of communications to and from Times reporter Ali Watkins without giving her prior notice. The seizure covered years during which Watkins worked for other news publications, the Times reported, and dated back to her years in college. Watkins has not been accused of any violations of law.
"People in power have always tried to control information," said National Press Club President Andrea Edney. "What's new is the technological reach they now have."
Noting that the Justice Department met recently with a "News Media Dialogue Group" of editors and executives of major news organizations created in response to an earlier seizure of a reporter's communications, the letter asks Sessions to uphold commitments made in the Justice Department's 2015 guidance that resulted from those conversations. 
The department is two years behind in publishing promised annual reports describing instances in which it applied the media guidelines to obtain records from, or records of members of the news media, the letter-writers remind Sessions.
The letter urges the attorney general to release those reports and invites him to join media representatives and free speech advocates in an effort to balance the needs of law enforcement with the public's right to know. 
⏩ "The National Press Club will make its podium available to you should you want to explain the Department's actions in public and answer questions from the press," the letter says.
"As a society that depends on the free flow of information — including information from whistleblowers — we need mechanisms in place to ensure that technology is used to enhance democracy not sabotage it," said Barbara Cochran, president of the National Press Club's Journalism Institute.

Read the letter below:
Dear Mr. Attorney General,

As fellow citizens of a democracy whose vibrancy depends upon a free and independent press, and on behalf of organizations concerned professionally with press freedom and civil liberties, we respectfully invite you to join us in considering how the Justice Department can, in the words of your department's own guidance for handling investigations of the news media, "strike the proper balance between law enforcement and free press interests."

In recent days, many of us have publicly expressed our concern about your department's decision to seize the phone and email records of New York Times reporter Ali Watkins. We would appreciate an opportunity to hear more about your thinking in this particular matter and to discuss the possible implications for our country.

In the present case, we would like to know what justified such a broad seizure of records and whether the other avenues specified in Justice Department guidelines were in fact exhausted as existing regulations require. 

This intrusion is particularly troubling because it relates to reporting concerning alleged misdeeds by the president's campaign, raising questions about whether the content of the reporting is what occasioned this unusual level of scrutiny. Moreover, we share a concern that this will have a chilling effect on other journalists who now know that records of their calls, emails and texts may be reviewed without their knowledge, perhaps months and years after the fact.

For the past several years, civil society groups and media organizations have fruitfully engaged in discussion with the Department of Justice about these matters. After controversy arose when the Justice Department seized records of the Associated Press in 2013, then-Attorney General Eric Holder met with a News Media Dialogue Group. Based on those conversations and the recommendations of federal prosecutors, new regulations were developed in 2015 designed, as Mr. Holder wrote at the time, to "ensure the highest level of oversight when members of the Department seek to obtain information from, or records of, a member of the news media."

We are heartened that your department has continued conversations with the News Media Dialogue group. We echo some of that group's concerns. As you know, one of the important precepts contained in the 2015 guidelines states that "(t)he use of a subpoena or court order to obtain from a third party communications or business records of a member of the news media should be pursued only after the government has made all reasonable attempts to obtain the information from alternative sources." Was that the case with regard to the seizure of the Times reporter's data? Is your department still operating under the protocols enshrined in the Code of Federal Regulations at 28CFR 50.10?

The Department of Justice also committed to publishing annual reports showing the instances in which it applied the News Media Guidelines in obtaining information from, or records of, members of the news media, and questioning, arresting, or charging members of the news media. The first annual report was released in summer 2015 and encompassed calendar year 2014. The second annual report was released in summer 2016 and encompassed calendar year 2015. 

We respectfully urge you to publish the 2016 and 2017 reports which serve to provide the public with information about how often the guidelines are used and for what purpose.

We hope you will agree that protecting the public's right to know is something that transcends political differences. Our democracy works because there are checks and balances on power. The Fourth Estate is one of them. "The only security of all is in a free press," Thomas Jefferson wrote to the Marquis de Lafayette.

We look forward to your response and are prepared to meet with you at any time to address these questions directly. Moreover, the National Press Club will make its podium available to you should you want to explain the Department's actions in public and answer questions from the press.

Sincerely,

Andrea Edney, President National Press Club

Suzanne Nossel, CEO PEN America

Barbara Cochran, President National Press Club Journalism Institute

John Donnelly, President Military Reporters & Editors

Brandon Benavides, President National Association of Hispanic Journalists (NAHJ)

Michael P. King, President National Press Photographers Association (NPPA)

Ricardo Trotti, Executive Director Inter American Press Association

Chuck Raasch, President Regional Reporters Association

Margaux Ewen, North America Director Reporters Without Borders (RSF)

Sandy Johnson, President & COO National Press Foundation

Bernie Lunzer, President NewsGuild-CWA

Sue Cross, Executive Director and CEO Institute for Nonprofit News

George Freeman, Executive Director Media Law Resource Center

Alfredo Carbajal, President American Society of News Editors

Bruce Shapiro, Executive Director Dart Center for Journalism and Trauma

Molly Willmott, President Association of Alternative Newsmedia

Dan Shelley, Executive Director Radio Television Digital News Association

Jim Simon, President Associated Press Media Editors

Margaret Engel, Executive Director The Alicia Patterson Foundation

Craig Aaron, President Free Press/Free Press Action Fund