US Attorney General Eric Holder
In what is being called a "massive and unprecedented intrusion" into a news organization, the Department of Justice has admitted that it seized two months' worth of phone records from the Associated Press. The president of the AP has now sent a letter protesting the unjustifiable violation, which follows the DoJ's admission of the probe last Friday.
"There can be no possible justification for such an overbroad collection of the telephone communications of The Associated Press and its reporters. These records potentially reveal communications with confidential sources across all of the newsgathering activities undertaken by the AP during a two-month period, provide a road map to AP's newsgathering operations, and disclose information about AP's activities and operations that the government has no conceivable right to know," AP President Gary Pruitt said.
According to the AP's own reporting, the records included incoming and outgoing calls, and call durations, for AP office phones, the phone for AP reporters in the House of Representatives press pool, and, perhaps most distressingly, the work and private numbers of individual reporters.
In its letter notifying the AP of the seizures, the DoJ did not explain its actions, but the AP suggests that it may have been retaliation for a previous story:
U.S. officials have previously said in public testimony that the U.S. attorney in Washington is conducting a criminal investigation into who may have leaked information contained in a May 7, 2012, AP story about a foiled terror plot. The story disclosed details of a CIA operation in Yemen that stopped an al-Qaida plot in the spring of 2012 to detonate a bomb on an airplane bound for the United States.
According to the AP, the phone records include lines used by five reporters and an editor connected to that story. . The DoJ did not explain when it seized the records, and it's unclear whether a subpoena was ever reviewed or signed by a judge. A subpoena for a news organization's phone records is not unusual, but must be drawn "as narrowly as possible" according to DoJ rules, which would make the seizure of records for more than 20 phone lines at the AP unreasonably broad.
Now, it doesn't appear that the DoJ was able to squeeze any content out of the deal, just phone logs. Accessing those are ridiculously easy, and in fact you can just fill out a form to take to the attorney general to sign off on. But the scope of the records seized in this case is huge, and given the DoJ's record, who's to say it didn't also secretly check out reporters' emails and instant messages?
Of course, the DoJ secretly monitoring someone without judicial oversight is nothing new. Just this last week we saw yet more evidence that the FBI and Justice Department believe they don't require warrants to spy on the electronic correspondence of American citizens.
Connecting both cases is the DoJ's institutional reliance on subpoenas—orders signed by district attorneys or attorneys general, not independent judges like a warrant—to gather data on protected organizations and individuals.
Yet while surveilling citizen's emails without judicial oversight is already an eye-popping affront to privacy, the DoJ and FBI have gotten far more brazen. While the FBI is on Capitol Hill waving the specter of terrorism and cybercrime to try to force tech companies to install backdoor access to their user data, the DoJ has gotten bold enough to seize wide-ranging records on the goddamn Associated Press.
It's an almost unfathomably arrogant move. Right in the middle of a growing privacy shitstorm in Washington—which includes the IRS, NSA, and every other TLA you can imagine—the DoJ decided to notify one of the largest press agencies in the world that it had been spying on it.
It's enough to make you question the sanity (or sobriety) of those in charge of Justice. But then you remember that the DoJ is just part of a decade-long march towards the erosion of privacy and constitutional protections made in the name of terrorism and national security. It also comes while the DoJ is being steered by a White House that's unprecedented in its aggressive pursuit of whistleblowers and government leaks. This is what we've earned in the name of security: Nothing in America is safe from prying eyes, unless it's the government.