Reporter Surveillance and the Espionage Act: The Government’s War on Disclosure

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By Cody Bloomfield

Earlier this year, news broke that Trump’s Department of Justice had subpoenaed reporters’ phone records. Biden condemned this seizure of journalists’ records, calling it “simply wrong.” Biden promised that his DOJ would not pursue journalists’ records. Yet this weekend’s revelations tell a different story. This weekend, reporters revealed that the change in administrations did little to abate attacks on press freedom. Biden’s DOJ continued to issue subpoenas for journalists’ records – complete with gag orders. In February of this year, the FBI attempted to obtain the IP addresses and mobile identification information of readers of an online USA Today article about the killing of two FBI agents. This record request came complete with a gag order requiring USA Today to keep the probe’s existence a secret “indefinitely.” The Biden administration also subpoenaed New York Times reporters’ email records from Google. The accompanying gag order prevented a New York Times attorney from warning his colleagues about the investigation. DOJ has promised to end subpoenas against reporters, but it’s worth contextualizing these revelations within the broader war on whistleblowers. In order for the press to be able to hold the government accountable for wrongdoing, journalists need free access to sources. Senator Wyden and Representative Raskin plan to introduce legislation shielding journalists, but even if passed, this would only be a partial fix. True press freedom requires reforming the Espionage Act. Subpoenas and Espionage Act prosecutions are parts of the same story of government suppression of the press through attacking its sources.

Press freedom isn’t just about government censorship. Journalists’ ability to publish freely matters, but exercise of this First Amendment freedom depends on journalists’ capacity to gather information freely.  Sources may be reluctant to approach journalists if they know their communication might be monitored by the government. This is doubly true of sources seeking to expose government wrongdoing. These fears are not speculative. Phone call and email records between whistleblower Jeffrey Sterling and a reporter were used by prosecutors to secure an Espionage Act conviction, even though the journalist refused to cooperate with the investigation. Further,  following 2013 news that Obama’s DOJ subpoenaed reporters’ records, the Associated Press had difficulty reporting certain stories. AP President Gary Pruitt explained the problem: “Some of our longtime trusted sources have become nervous and anxious about talking to us, even on stories that aren’t about national security.” Pruitt cited an instance when the AP couldn’t get routine confirmation of a fact from a law enforcement officer following headlines that the government had subpoenaed reporters’ records. 

When DOJ and the FBI subpoena reporters’ records, they raise the barrier to exposure of government wrongdoing. Obama started the trend of subpoenaing reporters as part of a broader crusade against whistleblowers. In a system where the government routinely subpoenas reporters’ records, news outlets are forced to moonlight (often unsuccessfully) as encryption experts.  Subpoenas of journalists’ records erode confidentiality between reporters and sources, thus decreasing the probability that whistleblowers will come forward. This exacerbates existing issues journalists and whistleblowers face, including prosecution under the Espionage Act. Snowden lawyer Jesselyn Radack describes Espionage Act whistleblower prosecutions as a “backdoor war on journalists.” The attempted prosecution of WikiLeaks publisher Julian Assange represents a spillover of the war on whistleblowers from the ranks of national security agencies into the press corps. DRAD has frequently decried the application of the Espionage Act against whistleblowers and journalists. Subpoenaing journalists’ records potentially gives the government access to information it can then use to prosecute whistleblowers under the Espionage Act. These problems are deeply interconnected; both represent grave threats to public access to information.