Legislation Requires Judges to Sign Off on Secret Subpoenas Targeting Journalists Leave a comment

With a nod to recent revelations about the Trump Justice Department seeking to unmask sources behind news reports critical of the former president, Senator Ron Wyden on Monday introduced a new bill aimed at protecting news organizations from politicized surveillance.

Accusing the former president’s staff of abusing their power to hunt down objectors, Wyden called for “clear rules” to be enshrined “into black-letter law” shielding journalists from unlawful and politically charged investigations.

In a statement, Wyden, a Democrat of Oregon, accused the Trump administration of being motivated to “prevent the American people from learning the truth about Trump’s lawlessness and corruption,” saying future government efforts to unmask journalistic sources and methods should encounter higher legal hurdles.

Wyden’s bill, titled “Protect Reporters from Excessive State Suppression,” or PRESS, seeks to rein in the government’s power to obtain essentially any material that might betray anonymous sources. These limitations would also apply to third parties, such phone and internet providers, whose private records might identify government workers interviewed by journalists.

“Our nation’s history has shown that confidential sources are often crucial to helping journalists shed light on important public matters critical to a strong democracy,” said David Chavern, president and CEO of News Media Alliance, which has already endorsed the bill.

Although the First Amendment was passed as a guarantee against government interference in a free press, no federal statute exists tackling the extraordinary pursuit of journalists’ private data.

While some agencies have written policies that appear to safeguard journalists from invasive investigatory practices, these can usually be waived by top-ranking officials citing vaguely worded exemptions.

The Justice Department, for instance, has long claimed to restrict the use of secret press subpoenas to instances in which notifying a newsroom would “pose a clear and substantial threat to the integrity of the investigation,” or otherwise “risk grave harm to national security, or present an imminent risk of death or serious bodily harm.” (In the same vein, FBI agents have ostensibly been limited in the past in their ability to even interview journalists without the permission of higher-ups.)

In May, news reports began surfacing that described efforts by Trump officials to seize phone records of reporters at the New York Times, Washington Post, and CNN. The apparent aim was to expose White House critics who’d become anonymous sources in stories of national importance, such Moscow’s efforts to undermine the 2016 election.

Wyden’s bill would inject judicial review into this process, requiring a judge to approve cases in which the government seeks journalists’ protected information and desires to do so secretly. Maintaining that secrecy would require constant approval from a court every 45 days.

During each renewal, the court would have to come to a “new and independent determination” that providing notice to the affected journalist would “pose a clear and substantial” threat to the investigation, or otherwise put someone at imminent risk of physical harm or death.

Unlike the DOJ’s own internal polices, there is no exemption in Wyden’s law that allows secrecy for ambiguously described “national security” reasons.

“My legislation creates strong protections for reporters, with common sense exceptions for cases when the government truly needs information immediately,” said Wyden, a longtime vocal proponent of civil liberties on the Select Committee on Intelligence.

In addition to the News Media Alliance, the PRESS Act was announced with endorsements from Radio Television Digital News Association (RTDNA), Society of Professional Journalists, National Association of Broadcasters, and the News Leaders Association.

While Wyden’s bill would “greatly restrict” the government’s efforts to identify anonymous sources, according to Dan Shelley, executive director at RTDNA, the true beneficiaries, he said, “would be members of the public, whom journalists serve by seeking and reporting the truth without fear or favor.”