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Bad call: Government grabs phone records

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Larry Lough is executive editor of Sauk Valley Media. Contact him via email at llough@saukvalley.com.

When police discovered a homicide file was missing from the chief detective’s office, they wanted to know who took it.

When our newspaper – in this editor’s previous life – reported that the file was missing, police wanted to know how a reporter found out.

To do their jobs well, newspapers and police departments need each other.

So they usually have a good relationship.

But like any relationship, it’s not perfect.

CITY POLICE HAD a system for maintaining files of ongoing homicide investigations.

The file folders were lined up on the floor behind the chair that was in front of the chief detective’s desk.

Nobody said it was a great system.

But it seemed to work fine.

Until a folder went missing.

EVEN THOUGH THE young reporter would not tell the police department who had told him about the missing file – the state “shield law” allowed him to protect the source’s confidentiality – the reporter told investigators too much.

He told them about the day he heard about it, how he had received a phone call from a source ...

That was enough.

Even though the newspaper had done nothing illegal, the local prosecutor obtained a subpoena for a record of the newspaper’s telephone records, and the phone company willingly complied with the court order.

Had the newspaper been subpoenaed, we would have had the opportunity to object and argue our case before a judge.

But police believed the file had been stolen, and they were investigating a suspected crime. So they persuaded a judge to sign the order.

When we found out about it, we squawked – in person and editorially.

First Amendment. Freedom of the press. Inappropriate government intrusion of our constitutional rights.

And yet, we seemed to have no clear legal basis for our objections.

THAT EPISODE CAME to mind this week amid the controversy over the U.S. Justice Department’s obtaining phone records of the Associated Press.

The Justice Department was trying to figure out whether some government official had illegally given the AP classified information that was the basis for an AP report on the CIA’s infiltration of an al-Qaida cell in Yemen.

“Serious interference with AP’s constitutional rights to gather and report the news,” the AP brass called it.

“Insult to an independent press,” Community News Holdings Inc. editorialized.

“The stakes seem high enough to justify such a probe,” the Boston Globe conceded, “but not to justify two months’ worth of fishing around in general AP phone records, searching for a needle in a haystack.”

Grabbing all those phone records – several phone lines for a couple of months – was the easiest (laziest) thing for the government to do.

But it was not the right thing.

UNDER THE FIRST Amendment, the press and government have a naturally adversarial relationship.

That constitutional “social contract” gives the press broad legal protection so that it might report without hesitation on the deeds and misdeeds of the government.

Congress shall make no law abridging freedom of the press, and government generally shouldn’t interfere with the press as it does its job.

The press needs that independence – sources (whistle-blowers) must know they can trust the “watchdog” of government – if it is to be effective in reporting official excesses that threaten the freedoms of all Americans.

Congress has not, however, seen fit to provide a federal shield law to allow the press to protect the identities of its confidential sources.

And that makes it easier for government officials to justify taking extraordinary measures to compromise those sources.

Which, in turn, compromises the independence of the press.

That’s not good for anybody.

THIS CONTROVERSY has, for the time being, brought politicians of all stripes to the defense of the press.

Even the political right, which routinely criticizes the AP for not being aligned with the political right, expressed outrage at the Justice Department over-reach.

In another time with a different administration in the White House, some of those staunch defenders of the press would be accusing the AP of treason for exposing classified information from a government leaker.

Check out Daniel Ellsberg and the Pentagon Papers from about 40 years ago.

But today, one of the games in Washington is to try to discredit the current administration while laying the groundwork for the 2016 presidential election.

It’s politics, not principle, that has won the press many of its new friends.

Don’t count on them next time.

ALL THAT HAVING been said, the press needs to be realistic about how the world works.

That means you’re foolish to transact confidential business over the telephone.

Not to mention the Internet.

Or any electronic medium, for that matter.

Perhaps no medium – or human interaction – is completely immune from possible intrusion from the technology available these days.

But it’s up to journalists to take all due precautions to protect their professional privacy.

We cannot, obviously, count on the government for that.

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