Amicus brief against Department of Justice's refusal to release records
Revelations in 2013 that the Department of Justice had subpoenaed the telephone records of more than 100 Associated Press reporters (and also sought email records of Fox News reporter James Rosen) led to a major outcry among media companies and organizations, as well as the public, and resulted in a series of meetings between media and the DOJ to discuss necessary improvements to voluntary DOJ guidelines regarding subpoenas issued to and about the media, which were originally created in 1970. By 2014, we had stronger, but still voluntary, guidelines.
However, it became apparent that the DOJ was still collecting information about journalists' communications via other methods, most specifically "National Security Letters," akin to an administrative subpoena issued under the Electronic Privacy Communications Act without the requirement of prior court approval. When pressed, the DOJ declined to reveal whether there were specific procedures in place to guide the use of NSLs relating to the media. The Freedom of the Press Foundation filed a FOIA request for information about those procedures and policies, but that request was denied. The foundation has now filed a lawsuit.
ASNE joined 37 other media organizations and companies in a brief drafted by the Reporters Committee for Freedom of the Press. Our brief explains the importance of the DOJ guidelines as a means of restraining the government's investigative and prosecutorial powers. We note that the government's reluctance to disclose what policies and procedures are applicable to NSLs and the Foreign Intelligence Surveillance Act warrants is troubling. This is all a matter of public concern, as it can and, indeed, has been demonstrated to, affect the reporter-source relationship. We can't even estimate how much or address concerns about this chilling effect until we know how often these NSLs are used.