No doubt by now, anyone with a TV, newspaper, or internet connection likely is familiar with the U.S. Department of Justice’s May 10th revelation that it had seized phone records of approximately 20 phone lines for Associated Press reporters and editors over a period of about two months. DOJ’s disclosure has ignited much debate over the propriety of the seizure.

When the story broke, USA Today contacted Crowell & Moring’s EDIM attorneys for a comment on DOJ’s actions. In my view, too little is known so far to reach any definitive opinions on whether DOJ overstepped its bounds or abused the process in some way. But as I told Roger Yu at USA Today, DOJ evidently has taken the view that its authority is broad enough to grab reporters’ phone records without advance notice and this certainly raises serious First Amendment questions, especially given the seemingly broad scope of the information seized and what DOJ may now have in its possession regarding such non-public information as confidential media sources. DOJ’s actions also raise important privacy and national security issues — and perhaps most significantly, how to maintain the delicate balance between these sometimes-competing concerns.
 
Gary Pruitt, the AP President and CEO, responded to the DOJ’s revelation by condemning their actions.  He characterizes the subpoena as “overbroad” and the seizure “as a serious interference with AP’s constitutional rights to gather and report the news.” DOJ responded with a statement of its own defending its actions. 
 
Others also have weighed in according to news reports. The Wall Street Journal reports that Ben Wizner of the American Civil Liberties Union called the government’s move “an unacceptable abuse of power.” The WSJ also reports that the Reporters Committee for Freedom of the Press sent a letter to DOJ complaining that it “appears to have ignored or brushed aside almost every aspect” of DOJ’s own guidelines governing subpoenas of reporters’ phone records. The letter reportedly was signed by more than 50 major media organizations and journalism groups.
 
We will continue to monitor this story as it unfolds. In the meantime, if you have confidential information to share with the press, you might consider doing it over a cup of coffee rather than the telephone.