After Multiple Reports Of DOJ Targeting Journalists' Communications, The DOJ Finally Says It Will Stop Targeting Journalists

from the free-press-(temporarily)-removed-from-the-govt's-shitlist dept

The DOJ -- following President Biden's lead -- has declared targeting journalists' communications is officially off-limits. Biden's statement followed reports of two separate instances where his predecessor's DOJ tried to obtain email and phone records belonging to journalists working for the Washington Post and CNN.

More recently, it was revealed a leak investigation instigated by Trump's DOJ targeted New York Times' journalists. That one continued into 2021 under new Attorney General Merrick Garland. In that case, the government was seeking the source of leaks involving the FBI's investigation of Hillary Clinton's private email server but was unable to obtain anything after Google challenged the subpoena.

The subpoenas for the NYT journalists' records were withdrawn by the DOJ hours after that story broke, with Biden's press secretary claiming the Administration was not aware the DOJ and FBI were still pursuing this information.

As appropriate given the independence of the Justice Department in specific criminal cases, no one at the White House was aware of the gag order until Friday night [June 4]. While the White House does not intervene in criminal investigations, the issuing of subpoenas for the records of reporters in leak investigations is not consistent with the President's policy direction to the Department, and the Department of Justice has reconfirmed it will not be used moving forward.

This would align the DOJ with Biden's statement on targeting journalists. But there's another group of people in need of some protection from the DOJ's investigative methods: readers of news sites. Yet another DOJ investigation involving journalism was exposed late last week. In that one, the FBI targeted readers of USA Today reporting on a child porn raid that ended in the deaths of two FBI agents and the suspect they were seeking. Gannett News attempted to quash the subpoena, noting the FBI had apparently violated the DOJ's rules on targeted First Amendment activity.

That subpoena has now been officially withdrawn by the DOJ. And the FBI has admitted it was able to identify the suspect it was seeking by using other methods, which does nothing to explain why an agent working for the FBI's child exploitation task force thought it was a good idea to obtain information about readers of a story where a child porn suspect opened fire on agents (killing two of them) prior to being killed himself.

That last withdrawal accompanies the DOJ's first public statement on the subject. It appears this DOJ will be the first in a long, long time (or perhaps ever) to respect the First Amendment, rather than look for ways to work around it.

In a separate statement, Justice Department spokesman Anthony Coley said that “in a change to its longstanding practice,” the department “will not seek compulsory legal process in leak investigations to obtain source information from members of the news media doing their jobs.”

He added: “The department strongly values a free press, protecting First Amendment values, and is committed to taking all appropriate steps to ensure the independence of journalists."

What's left unsaid here is how the DOJ will define journalism and journalists. There are plenty of independent journalists who cultivate sources and report on events that involve ongoing federal investigations. Leakers will continue to leak and presumably -- given Biden's tour as VP for noted leak-hunter Barack Obama -- the government will still seek to identify and prosecute them.

But this is the first public statement made by a DOJ official that says something other than the DOJ will respect free speech rights to the extent its internal guidelines suggest it should. Historically, that range has been "barely" to "not at all." If the DOJ is serious about respecting these rights, it's obviously going to make it more difficult to hunt down leakers. But constitutional rights are rights, not things to be set aside whenever they inconvenience federal law enforcement agents. Hopefully, this pledge will last longer than the current administration.

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Filed Under: 1st amendment, 4th amendment, doj, journalists, leaks, records, subpoena, whistleblowers


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  • icon
    Vidiot (profile), 9 Jun 2021 @ 10:30am

    Hmmm... while the DOJ is still flush with proclaimed enlightenment and good intentions, can we drop the crusade for embedded backdoors?

    reply to this | link to this | view in chronology ]

  • icon
    Chris-Mouse (profile), 9 Jun 2021 @ 11:33am

    In other news...

    After many reports of bank robber robbing banks, bank robber promises not to rob any more banks.

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 9 Jun 2021 @ 11:46am

    will the doj go after bloggers or independent websites if theres leaks in the future,
    not everyone who reports news works for newspapers or publishers

    reply to this | link to this | view in chronology ]

  • identicon
    bobob, 9 Jun 2021 @ 11:48am

    That promise seems rather empty to me. Without some legislation that legally binds the DOJ to that promise with penalties, it means nothing. No one will even know if that promise is violated without legislation that independent oversight.

    reply to this | link to this | view in chronology ]

    • identicon
      David, 9 Jun 2021 @ 12:02pm

      Re:

      Without some legislation that legally binds the DOJ to that promise with penalties, it means nothing.

      Well, arguably the Constitution should be considered legally binding to any government institution, let alone one called "Department of Justice".

      I'd say that this alone should preclude any "conservatives" for voting Republican for a long time, but then it's not like the Obama administration was any better. You'd have to go back at least to Clinton. And I don't actually remember the first Bush being into the whole "the ends justify the means" bit either, even if under his son the DOJ ran rampant.

      Maybe 9/11 let the cat out of the bag.

      reply to this | link to this | view in chronology ]

      • identicon
        bobob, 9 Jun 2021 @ 12:28pm

        Re: Re:

        The constitution alone means nothing without legislation providing penalties for violating its provisions and providing oversight to ensure the government doesn't violate those laws. I've read enough supreme court opinions to realize that long, eloquent arguments can be used to justify a decision that fits the opinion of what the law should be according to the justice who is writing it. The so-called "originalists" are the worst, as that term is a complete misnomer as they use it.

        reply to this | link to this | view in chronology ]

        • identicon
          David, 9 Jun 2021 @ 12:47pm

          Re: Re: Re:

          Well, Lincoln certainly was not an originalist, nor was he conservative.

          It took them a while, but the Whigs repossessed the Republican party.

          reply to this | link to this | view in chronology ]

  • identicon
    Annonymouse, 9 Jun 2021 @ 12:20pm

    All this time effort and resources squandered on the persecution of leakers. Not one iota is given to dealing with the crass blatant and criminal shenanigans that these leakers revealed.

    I would not even bother trying to hold a congress critters breath waiting for them to go out and deal with the crimes revealed by the leaks, though we are all sorely tempted. But eww, who would willingly want to even touch one?

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 9 Jun 2021 @ 2:18pm

    What's left unsaid here is how the DOJ will define journalism and journalists.

    "Citizen", at the very least, should be a good enough definition.

    reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 9 Jun 2021 @ 4:28pm

      Re:

      Naw... it's a promise written in smoke. Even if the current administration honors it (which is doubtful), the next is unlikely to... even if it is the same party.

      reply to this | link to this | view in chronology ]

  • identicon
    Pixelation, 9 Jun 2021 @ 5:53pm

    DOJ: "We promise not to target journalists...and let anyone know about it."

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Hero, 10 Jun 2021 @ 9:11am

    What's left unsaid here is how the DOJ will define journalism and journalists.

    Something that has always bothered me is the concept that we should even have a definition of "journalist" in the first place. It implies a two-class system. Either you are a journalist or not a journalist. Are there a group of people that may publish material that others may not? In other words, is it legal for you to do it because you're a journalist, but illegal for me to do the same thing because I'm not? It doesn't make sense.

    Still, I'm not impressed by the DoJ's statement. Talk is cheap. I'd be willing to bet that this won't be the first Biden Administration's scandal about spying on the "press", however you define it.

    reply to this | link to this | view in chronology ]


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