This specific blog post has been prompted by news that the Department of Justice had subpoenaed the phone records of the Associated Press. Many are concerned about this news for many reasons, not the least of which being that this revelation suggests that, at minimum, the Department of Justice violated many of its own rules in how it did so (ie, it should have reported the existence of the subpoena within 45 days, maybe 90 on the outside, but here it seems to have delayed a year). The subpoena of the phone records of a news organization also threatens to chill newsgathering generally, for what sources would want to speak to a reporter if the government could be presumed to know that these communications had been taking place? For reasons discussed in the context of shield laws, reporters can’t do their information-gathering-and-sharing job if the people they get their information from are too frightened to share it. Even if one were to think that in some situations loose lips do indeed sink ships and it’s sometimes bad for people to share information, there’s no way the law can differentiate which situations are bad and which are good presumptively or prospectively. In order to for the good situations to happen – for journalists to help serve as a check on power — the law needs to give them a free hand to discover the information they need to do that.
But the above discussion is largely tangential to the point of this post. The biggest problem with the story of the subpoena is not *that* it happened but that, for all intents and purposes, it *could* happen, and not just because of how it affected the targeted journalists but because of how it would affect anyone subject to a similar subpoena for any reason. Subpoenas are not search warrants, where a neutral arbiter ensures that the government has a proper reason to access the information it seeks. Subpoenas are simply the form by which the government demands the information it wants, and as long as the government only has to face what amounts to a clerical hurdle to get these sorts of communications records there are simply not enough legal barriers to protect the privacy of the people who made them.