Prosecutors’ approach to unauthorized disclosures of government secrets has undergone a sea change in the 21st century.
WASHINGTON — Government leak hunters have been ratcheting up pressure on the ability of journalists to do their jobs for a generation — a push fueled by changing technology and fraught national-security issues that arose after the Sept. 11, 2001, attacks. Now, those tensions have reached an inflection point.
Recent disclosures about aggressive steps that the Justice Department secretly took under President Donald J. Trump while hunting for the confidential sources of reporters — at The New York Times, CNN and The Washington Post — prompted a backlash from the top. President Biden ordered prosecutors to stop seizing reporters’ phone and email data.
But Mr. Biden’s sweeping vow to ban a practice he called “simply, simply wrong” left crucial questions unanswered. Among them: How broadly prosecutors will define the journalistic activities that the new protections apply to? And will the changes be easy or difficult for a future administration to roll back?
“The question of how this will be institutionalized or codified is crucial,” said Jameel Jaffer, the director of the Knight First Amendment Institute at Columbia University. “These kinds of protections shouldn’t be a matter of executive grace.”
Enshrined in the First Amendment, the role of the free press in bringing to light information beyond what those in power approve for release is a foundational principle of the American system of self-government. In Senate testimony this past week, Attorney General Merrick B. Garland said the transparency that comes from investigative journalism about “wrongdoing and error in the government” gives people faith in democracy.
An essential task for journalists who report such material is to talk with officials who are not authorized to publicly speak about government matters and to protect their confidentiality. Leak prosecutions and seizures of journalists’ communications data not only jeopardizes particular sources, but can also frighten others with newsworthy information into staying silent.
But the confluence of recent events — which also include the Trump-era targeting of Democratic lawmakers and aides suspected of being reporters’ sources, and extraordinary gag orders imposed on Times and CNN executives in fights over data that spilled into the Biden era, all of which an inspector general is investigating — has brought into focus how fragile the protections for journalism are in the 21st century.
Mr. Biden has vowed a major course correction. Mr. Garland, who as a federal appeals court judge in 2005 stressed “the public interest in protecting” reporters’ sources to avoid chilling the disclosure of information with “importance to the public,” has signed onto that effort while acknowledging this past week that “there are some definitional questions, but I think they are quite resolvable.”
The unresolved details are expected to be a focus of a meeting on Monday between Mr. Garland and leaders of The Times, The Post and CNN.
One issue is whether Mr. Garland will replace a Justice Department regulation that permits seizures of reporters’ information that can reveal their sources in leak investigations under certain conditions — or leave it intact and simply ban that technique for the time being.
Mr. Garland has discussed only issuing “some kind of memorandum, obviously, from me.” If he pursues that route, the Biden administration’s changes may prove fleeting. With or without telling the public, he or a successor could later revoke his memo or make an exception.
A regulatory change would be an intermediate step. It would take greater bureaucratic effort to reverse, and the public would be more likely to learn if it were undone. Mr. Garland could change the department regulation on his own.
By contrast, he would need help from Congress for an even more robust change: enacting the ban as a new law.
There is precedent. In 1980, after the Supreme Court upheld a police search of a newsroom to hunt for unpublished photographs of a protest that turned violent, Congress barred law enforcement from seizing journalists’ work product materials, except if a journalist was suspected of a crime.
Key details about the scope and limits of any new restrictions on prosecutors also remain unresolved.
It is clear that whether a reporter’s information is protected from investigators will turn on the circumstances. For example, investigators will still be able to seize the communications records of criminal suspects who happen to be reporters.
“In developing this policy, we have to distinguish between reporters doing their jobs and reporters committing crimes unrelated to the leaking,” Mr. Garland testified.
But other issues are murkier. Among them is what counts as reporters “doing their jobs” under the new protections. Defining journalism in the internet era — when it is no longer necessary to have a printing press or television studio to disseminate information — is notoriously difficult.
Bloggers and self-proclaimed citizen journalists are not the only categories that arguably blur the lines. It is unclear, for example, whether the Biden administration intends to extend the shield to entities like RT, the Kremlin-funded news service that is generally considered an outlet for Russian propaganda.
Mr. Jaffer flagged a related question: How broadly will the department define leak investigations that the new policy will apply to? While a government official who decides the public should know a secret and tells it to a reporter without authorization is clearly leaking, what if the F.B.I. instead suspects the reporter’s source is a hacker or a foreign agent?
Given the ambiguity of what counts as a leak investigation, Mr. Jaffer said, “it’s possible the new rules would allow them to get a reporter’s records even if they think the reporter is a real reporter just doing his job.”
The recent events that prompted Mr. Biden’s vow were the culmination of a major shift in how the government treats unauthorized disclosures of official secrets that has been unfolding for nearly two decades.
Few argue that is unjustified for the government, like any organization, to try to deter excessive unauthorized disclosures. But for most of American history, it did so through administrative action, like the threat of losing one’s security clearance or job, rather than treating it as a crime.
Prosecutors first convicted an official of violating the Espionage Act for leaking to the news media — as opposed to spying — in 1985, and that case then stood alone for another generation. But starting midway through the George W. Bush administration, and extending through the Obama and Trump presidencies, it became routine to send leakers to prison.
That change partly stemmed from the legally and politically charged issues that arose in the post-Sept. 11 period, like the Iraq war, torture and warrantless surveillance. The Bush Justice Department formed a task force dedicated to going after high-level national security leaks, helping alter the bureaucracy’s culture.
The change also stemmed from 21st-century communications, whose deluge of electronic trails — “metadata” showing who contacted whom and when, to who looked at or printed out a classified computer file — made it easier for the F.B.I. to identify suspects. (Encryption, of course, has separately made it harder for agents to eavesdrop on the content of communications.)
Several cracks in protections for journalism have formed under the resulting pressure. One is that investigators have increasingly tried to seize data about reporters’ phone calls and emails.
Prosecutors sometimes notified news organizations about their intentions in advance, which has led to negotiations and court fights, including a 2006 appeals court ruling upholding a subpoena for a Times reporter’s phone data. However, the statute of limitations passed and the investigation ended.
Prosecutors have also avoided such lengthy fights by arguing that advance notification would damage an investigation and secretly seized reporters’ data from communications companies without it. Examples include an Obama-era seizure of Associated Press phone data disclosed in 2013 — and at least four Trump-era leak investigations.
Prosecutors have also subpoenaed reporters to testify about their sources.
In 2005, a Times reporter was jailed for 85 days because she refused to comply with a subpoena demanding that she talk about a confidential source. In a 2013 case involving another Times reporter, the Justice Department won an appeals court ruling that established that there is no “reporter’s privilege” that empowers federal judges to quash such subpoenas.
The Biden administration’s description of its new policy — that prosecutors “will not seek compulsory legal process in leak investigations to obtain source information from members of the news media doing their jobs” — appears to ban such subpoenas to reporters.
It is less clear whether Mr. Garland intends to address a growing threat of prosecuting reporters themselves for writing about government secrets.
In theory, several laws could be used to prosecute reporters for publishing national security secrets, but First Amendment concerns have deterred prosecutors from testing that idea. Cracks, however, have been forming in that barrier, too.
After The Times exposed secret post-9/11 surveillance under the Bush administration, some conservatives called for prosecuting the paper and its reporters.
In 2013, it came to light that the Obama Justice Department portrayed a Fox News reporter as a criminal conspirator in his source’s leak as part of a search warrant application. That time, conservatives joined in expressing outrage.
The Justice Department said prosecutors never intended to charge the reporter but portrayed him as a criminal to bypass the 1980 law that bans search warrants for reporters’ work materials; it makes an exception if the reporter is suspected of a crime. Attorney General Eric H. Holder Jr. banned the loophole.
But the specter of prosecuting reporters returned in 2019, when the department under Attorney General William P. Barr expanded a hacking conspiracy indictment of Julian Assange, the WikiLeaks founder, to treat his journalistic-style acts of soliciting and publishing classified information as crimes.
Obama-era officials had weighed charging Mr. Assange for publishing leaked military and diplomatic files, but worried about establishing a precedent that could damage mainstream news outlets that sometimes publish government secrets, like The Times. The Trump administration, however, was undeterred by that prospect.
For now, the First Amendment issues are on hold as Mr. Assange fights extradition from Britain. Soon after the Biden administration took office, the Justice Department pressed forward with that extradition effort in British court, leaving the charges in place.
But that was before Mr. Garland was sworn in — and before the latest uproar about the escalating aggression of the Justice Department’s leak investigation tactics prompted him to focus on drafting a new approach that, he testified, will be “the most protective of journalists’ ability to do their jobs in history.”
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