Trump World Grab-Bag--A Collection

Monday, May 13, 2013

Let Me Get this Straight--

There seems to have been some misconceptions here, so I hope I have understood this story properly. Although I'm not technically a journalist even though I play one on my blog, it seems to me that what has happened here goes a little like this--

Some AP reporters got information regarding the thing we don't call the War on Terror anymore, in which a terrorist plot was foiled because the US still does fight the terrorism. The government tries to classify info about the particulars because they'd greatly prefer their methods not be revealed to the bad guys. They got this leaked information from some official in the US government, because duh, who else would know, amirite?  So in order to stop this kind of drip, drip, drip of classified info, DOJ tried to find out who was doing it, and got a subpoena and obtained phone records.

With me so far? Good. Now, the info that was leaked by a government official fell into the laps of reporters who were doing their jobs--reporting! You can argue that maybe reporters should consider the source or make prudent judgements about what stories you run with and which you don't, but if a government official drops a goodie in your lap, why wouldn't you throw up your hands and cry "Just like Woodward and Bernstein!"

It doesn't look to me like DOJ was trying to chill the journalists doing their thing, though--and here's where the language I keep reading gets me: they obtained phone records through a subpoena. That isn't the same thing as a wiretap, is it? Here's what they got:

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

You know what I don't see there? That they got what they would have been looking for--who those reporters were talking to. And it makes more sense that's what they were after. You know, to plug the leaks.

It's a brave new post-9/11 world, and I believe in the freedom of the press and all that, and I think it's a really scary thing that we have stuff like warrantless wiretapping and the like. But if a government official is leaking stuff they shouldn't be, that's a national security issue, and pulling phone records to catch people who have done illegal stuff isn't some rare procedure (I think they call it "pulling the luds" on "Law and Order", which is where I get all my useful legal knowledge); it can be done by local police by obtaining a warrant. Okay, here they got a subpoena. But it's not like a "seizure" where jack-booted thugs stormed the phone company and got tapes (I don't even think it would be tapes, would it?) of conversations.

Under the PATRIOT Act, I think the process goes something like this:

G-men: "We would like some phone records please."

Phone company, "What's it like to want?"

G-men: "It's a matter of national security."

Phone company: "Oh." Whistles a few bars of "Billy, Don't be a Hero". "I guess we can do that."

Do I think it should be that easy? Um. I dunno. This is probably just a massive oversimplification on my part, partially for comic effect.  But when I keep seeing "seizure" and "wiretap" and whatnot, I kind of wonder if that isn't adding a little more color to the picture than what's actually there, you know?


upyernoz said...

my thoughts are along the same line. because the records were produced in response to a subpoena, that changes everything. as a lawyer i personally have subpoenaed phone records for some of my cases. it's really not that big of a deal. (of course, none of the people whose records i am subpoenaed were journalists. but it's not clear to me why journalists' phone records should be immune from subpoena when no one else's are)

on the other hand, i have read that AP was not given proper notice that its phone records were being subpoenaed. that is a procedural mishap. in my cases, the purpose of notice is to give the opposing party the chance to file a motion to quash the subpoena if there is reason to believe it is improper. but from what i read the feds get to give notice 90 days after-the-fact, when the records are probably already disclosed and it would have been too late to stop it with any motion. so it sounds like the procedural fault didn't actually harm AP in any substantive way. they wouldn't have been able to stop the subpoena even if the right notice was given.

nevertheless, this "scandal" will probably get some play. privacy issues that affect reporters are important issues to reporters.

ifthethunderdontgetya™³²®© said...

If you're saying the Obama Administration has done far worse already, so what's the big deal...I agree.

But that's not exactly an endorsement.