At a time when President Trump regularly attacks the news media, the Department of Justice may be preparing to make it easier for the government to obtain journalists’ private communications data.
The public relies on both journalists and whistleblowers for vital information about our government’s most controversial activities. Weakening the current rules that protect reporters — as well as their sources — would undermine freedom of the press and endanger activities at the heart of the First Amendment.
This week, The Hill that DOJ has been working for months on potential revisions to its rules about when prosecutors can demand reporters’ phone records and other sensitive information like notes or emails. These records can reveal a journalist’s confidential sources, including the individuals who entrust journalists with information the public needs to know. The new report comes after statements by former Attorney General Jeff Sessions that, under his watch, DOJ was pursuing as many leak investigations as it did under the Obama administration — which itself set records for leak prosecutions.
The report comes the same week that President Trump’s nominee to be the next attorney general, William Barr, was asked at his Senate confirmation hearing whether “he would jail reporters for doing their jobs” — meaning reporters who would not disclose their sources to prosecutors. After a long pause, Barr to rule it out.
ٰ’s were last in 2013, in response to public outcry after it emerged that it had used subpoenas to obtain the phone records of 20 Associated Press reporters as part of one leak investigation, and had seized the emails and phone records of Fox News reporter James Rosen in another. Now, the department is apparently considering reversing course and rolling back at least two key protections.
First, the current rules require that the government exhaust all other reasonable investigative steps before seeking a journalist’s confidential information using a subpoena or search warrant. This requirement recognizes the heightened sensitivity of records related to newsgathering, as well as the fact that seizing these types of records has a broad chilling effect on the work of a free press, far beyond any single investigation.
Second, the rules establish a presumption that DOJ will provide advance notice to a media organization before relying on a subpoena or search warrant to seize records, unless the attorney general personally determines that an exception applies. Notice allows media organizations to challenge a subpoena in court, for example, or to discuss the scope of a subpoena with the government before sensitive records are seized en masse.
Investigators at DOJ have reportedly at these requirements, arguing that honoring them makes leak investigations more resource-intensive and gives special treatment to journalists.
But these rules are not about special treatment — they exist to ensure that the free press guarantee of the First Amendment is a meaningful one. It should not be easy for the government to sift through journalists’ confidential sources precisely because of the damaging effects that would have on a robust and independent press.
The rules acknowledge the unique role that newsgathering plays in providing information to the public, including critical decisions by policymakers. Indeed, without such disclosures, the public would have never known about innumerable government activities that shouldn’t have been hidden in the first place, from the Pentagon Papers to illegal spying by the NSA.
Ultimately, the current complaints reflect a problem of ٰ’s own making. Leaks to reporters have always been a necessary element of healthy democratic debate in this country, yet under President Trump leak investigations have reached unprecedented heights. That is alarming enough. But the “stresses” this has placed on DOJ resources should not be a pretext for tearing down protections that are more important than ever.
The reality is that with the expansion of electronic communications, it has only gotten easier for DOJ to identify contacts with reporters, precisely because of the digital trail our communications leave behind. It has also gotten more dangerous for their contacts: Seizing all of a journalist’s phone records or email over a period of weeks or months is likely to expose even more confidential sources to scrutiny, even if those sources had no ties to the original investigation.
If anything, protections should be even stronger than they are, as the current rules do not go nearly far enough to safeguard both reporters and whistleblowers. Congress should pass a “” to close existing loopholes — and to prevent DOJ from seeking to jail reporters who are just doing their job when they refuse to disclose their sources.
Government leaks are often necessary so the public can hold its government accountable. Our democracy depends on assurances that confidential communications between journalists and their sources will be strongly protected.
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Press ReleaseDec 2024
Free Speech
National Security
ACLU and Partners Urge Supreme Court to Block TikTok BanACLU and Partners Urge Supreme Court to Block TikTok Ban
WASHINGTON — Today, the American Civil Liberties Union, the Electronic Frontier Foundation (EFF), and the Knight First Amendment Institute at Columbia University filed an amicus brief urging the Supreme Court to block the enforcement of a law that would effectively ban people in America from using TikTok as soon as January 19, 2025. Earlier this month, the U.S. Court of Appeals for the D.C. Circuit rejected TikTok’s challenge to the law. TikTok has asked the Supreme Court for a temporary injunction to prevent the app from being banned while the court considers whether to take the case, saying that unless the justices intervene, the law will “shutter one of America’s most popular speech platforms the day before a presidential inauguration.” “The Constitution imposes an extraordinarily high bar on this kind of mass censorship,”said Patrick Toomey, deputy director of ACLU’s National Security Project. “The Supreme Court should take up this important case and protect the rights of millions of Americans to freely express themselves and engage with others around the world.” The brief argues that the D.C. Circuit failed to fully address the law’s profound implications for the First Amendment rights of the 170 million Americans who use TikTok. While the lower court’s decision correctly recognized that the statute triggers First Amendment scrutiny, it barely addressed users’ First Amendment interests in speaking, sharing, and receiving information on the platform. The court also perplexingly attempted to cast the government’s ban on TikTok as a vindication of users’ First Amendment rights, which it is not. The rights groups also explain that the law was intended to suppress certain content and viewpoints that many legislators believe could be amplified on TikTok, including the risk of foreign “propaganda.” But under the First Amendment, the government must meet a very high bar to restrict speech based on concerns about its “motivating ideology” or “perspective,” and the government has not come close to meeting that bar here. “The government should not be able to restrict speech, especially to the extent here, based on guessing about the mere possibility of uncertain future harm,” said David Greene, civil liberties director at EFF. “The Supreme Court should put the TikTok ban on hold while it considers the DC Circuit’s erroneous ruling.” Finally, the brief underscores that the government can’t impose this type of sweeping ban unless it’s necessary to prevent extremely serious and imminent harm to national security. But the government has not provided evidence of impending harm, or evidence that banning TikTok is the only available way to address its concerns. As the brief explains, the D.C. Circuit improperly treated the government’s invocation of “national security” as a trump card and failed to hold the government to its burden. “Restricting citizens’ access to foreign media is a practice that has long been associated with repressive regimes, and we should be very wary of letting the practice take root here,” said Jameel Jaffer, executive director at the Knight First Amendment Institute at Columbia University. “It would do lasting damage to the First Amendment and our democracy if the Supreme Court let this ban go into effect even temporarily.” You can find the brief online here: https://www.supremecourt.gov/DocketPDF/24/24A587/335380/20241217144322392_24A587%20TikTok%20v%20Garland%20Amicus%20Brief%20pdfa.pdf -
MississippiJul 2024
Free Speech
Privacy & Technology
NetChoice v. FitchNetChoice v. Fitch
Whether a law that mandates age verification for all users of social media services violates the First Amendment. -
News & CommentaryDec 2024
Free Speech
Can you define pornography? Neither can the government.Can you define pornography? Neither can the government.
We break down the absurd-but-true history of trying to censor sexual speech under the guise of "keeping kids safe." -
Minnesota Supreme CourtNov 2024
Free Speech
Energy Transfer LP v. Greenpeace International, Unicorn RiotEnergy Transfer LP v. Greenpeace International, Unicorn Riot
This case in the Minnesota Supreme Court asks whether the MFFIA's protections apply to newsgatherers even if they are alleged to have engaged in trespassing while newsgathering. The ACLU’s State Supreme Court Initiative, alongside the ACLU of Minnesota and law firm Biersdorf & Associations, filed a brief representing Unicorn Riot, a media organization that covered protests of the Dakota Access Pipeline. The brief argues that MFFIA and constitutional reporter’s privileges, under both the U.S. and Minnesota constitutions, protect Unicorn Riot from having to comply with Energy Transfer’s subpoenas.