Report to the Midyear Meeting

Panama, Panama

March 6 – 9, 2015

Warrants and subpoenas issued to journalists have been a top concern among the U.S. news media for several years, a period in which the administration of President Barack Obama has greatly increased the prosecutions of leakers who have disclosed government secrets to the press.

As part of these investigations, the Department of Justice has several times swept reporters into its scrutiny by issuing subpoenas to determine the identity of confidential sources. That has occurred through the subpoena of the phone records of Associated Press reporters from the telephone company, the labeling of Fox News reporter James Rosen as a "co-conspirator" under the Espionage Act in order to obtain his emails, and, most recently, the pursuit of James Risen's testimony in the trial of Jeffrey Sterling.

Recent developments may signal a shift in DOJ's treatment of the media, though. Attorney General Eric Holder and government lawyers ultimately decided not to try to force Risen to testify, and DOJ has also engaged in a lengthy dialogue with representatives of the media to revise its internal guidelines for media subpoenas in a way that better respects the freedom of the press.

Federal Communications Chairman Tom Wheeler announced in early February that the FCC would vote on a new proposal that was strongly in favor of net neutrality. "These enforceable, bright-line rules will ban paid prioritization, and the blocking and throttling of lawful content and services," Wheeler wrote in an op-ed. He stated that he believed that the best way to sustain the Internet as a platform for "innovation and human expression" was to guarantee net neutrality. Net neutrality advocates worry that, without regulation, Internet Service Providers—the companies that own the pipes that carry Internet traffic—could charge higher rates for certain web operators, exclude certain content, or vary traffic speed for different types of content.

On February 26 the FCC approved the net neutrality policy by a 3-2 vote. Wheeler said that the policy will ensure "that no one — whether government or corporate — should control free open access to the Internet."

The Reporters Committee joined with several other media groups to submit comments on the FCC rulemaking last year, encouraging the agency to maintain an open Internet. Given the large volume of news consumption that takes place online, any policy that would allow Internet service providers to favor certain content over others would put First Amendment rights at risk.

The Justice Department's pursuit of the testimony of journalist James Risen in a high-profile leak investigation has come to an end. After over four years of fighting the subpoena issued to him in the Jeffrey Sterling case, Risen's ordeal concluded when the Justice Department announced in December 2014 that it would not attempt to force him to testify about the identity of a confidential source who leaked details of a C.I.A. operation for Risen's book State of War. The Justice Department began investigating Sterling, a former C.I.A. agent, in 2008, for allegedly leaking the information to Risen. Sterling was indicted under the Espionage Act in 2010, and Risen was subpoenaed to testify concerning whether Sterling was one of his sources. Risen fought the subpoena, and U.S. District Judge Leonie Brinkema of the Eastern District of Virginia found that he was protected from testifying by the reporter's privilege. In June 2014, the U.S. Supreme Court refused to hear Risen's appeal from the Fourth Circuit decision, and the case was returned to Judge Brinkema.

At a hearing in December, attorneys for the government announced that they would not force Risen to reveal the identity of his source. Risen was subpoenaed to appear at a hearing in January 2015 and gave short answers to very limited questions from both the government and Sterling's defense attorneys, mainly confirming that he had confidentiality agreements with certain sources and that he had talked to Sterling for a 2002 article that quoted him by name. He was not asked to testify about places and dates he had communicated with sources. Following that hearing, both parties announced that they would not call Risen for further testimony at Sterling's trial. Sterling was convicted under the Espionage Act three weeks later and faces a maximum sentence of decades in prison.

Without any insider knowledge of the internal deliberations within the Justice Department, one can speculate that there were a number of reasons behind the decision not to force Risen to testify. There was widespread backlash from the media and other members of the public against the government's pursuit of Risen and the prospect that a reporter would be forced to go to jail for honoring his promise of confidentiality. That pressure contributed to Attorney General Eric Holder's promise in the summer of 2014 that no reporter would go to jail for doing his job, though there was still a possibility that Risen could be fined if held in contempt. Another likely reason the government decided not to call Risen to testify was what Judge Brinkema had predicted earlier and which turned out to be true—the government could prove its case against Sterling without the aid of the journalist's testimony. Through scrutiny of Sterling's email and phone records combined with his access to sensitive information, the Justice Department was able to put together a circumstantial case identifying him as the leaker. The increasing technological capabilities that the Justice Department can use to investigate leakers' communications make it likely that the government will continue to bring those resources to bear and may not need journalists' testimony in the future.

Even though the outcome spared James Risen, the successful prosecution of Sterling sends a chilling message to future potential government whistleblowers, who may be deterred from speaking to journalists because of the great penalties under the Espionage Act and the ease with which the government can use electronic surveillance to investigate its case.

Following criticism of key portions of its media subpoena guidelines as revised in February 2014, the Department of Justice announced new revisions in January 2015 that address the concerns. The changes remove the term "ordinary newsgathering" from the guidelines, replacing it with "newsgathering activities," and clarify other sections to ensure that all newsgathering records are covered and that exceptions to protections are as narrow as possible. The Reporters Committee helped coordinate a News Media Dialogue Group of leading news industry leaders to meet with the Justice Department and discuss the media's concerns.

The Justice Department's overhaul of the guidelines took place after revelations in May 2013 that DOJ had secretly seized the phone and email records of journalists from the Associated Press and Fox News. The Reporters Committee and a coalition of more than 50 news organizations recommended revisions to the guidelines, which were originally written in 1970 and last revised in 1980 to include third-party subpoenas for telephone toll records. Under last year's revisions, it became more difficult for the Justice Department to withhold notice to a journalist or media organization when it subpoenas a third party. In addition, under the 2014 revisions, the Department may not invoke the "suspect exception" of the Privacy Protection Act—which allows the government to obtain a search warrant for material belonging to a journalist who is suspected of a crime—when the journalist is engaging in ordinary newsgathering activities and is not the target of the criminal probe. The term "ordinary newsgathering" was replaced with "newsgathering activities" in the latest revisions because of media concerns that the qualifier "ordinary" was too vague and could be used to withhold protection from journalists who were engaged in what the government could subjectively determine was newsgathering it disapproved of.

The revision of the guidelines occurred alongside the decision to prosecuteJeffrey Sterling without the testimony of James Risen. The ultimate decision not to force Risen to testify, combined with the willingness of the Justice Department to work with media groups to improve the guidelines, may signal that journalists can expect fewer threats of subpoenas in the future. On the other hand, the guidelines are merely voluntary and do not have the force of law, and they only govern the Justice Department; journalists may still be the subject of subpoenas from state prosecutors, for example. But these steps from the government are encouraging, and journalists are hopeful that the lines of communication will stay open so that future concerns may be discussed as well.