A nuanced take on the DoJ and the AP’s phone records

A few months ago the Department of Justice came under fire for snooping on two months’ worth of phone records concerning 20 phone lines, both office and personal, of five reporters and an editor. The action drew complaints for from civil libertarians, the news media, and Democratic and Republican politicians.

David Cole’s brief article in the June 10/17 issue of The Nation, a politically progressive magazine, presents a more balanced intelligently balanced view than I’ve seen reported elsewhere.

As Cole points out that the DoJ was investigating a genuinely serious leak of classified information. This wan’t a case of reporting something merely embarrassing to the government, it was a revelation that the CIA had successfully infiltrated a al-Qaeda terrorist cell, and the report compromised an important and legitimate piece of intelligence work. Moreover, the DoJ sought the phone records only after exhausting other avenues. Had DoJ sought a court order, it might well have obtained it.

But, Cole adds, the case also shows that existing law doesn’t do much to protect citizens and the news media from far less legitimate snooping, and there’s a tremendous amount going on: “… in 2001 alone, cellphone companies responded to 1.3 million subpoenas and other requests from law enforcement for subscriber information, including text messages, phone data and location information.”

Here’s something you probably didn’t know: The Electronic Communications Privacy Act (ECPA) requires the government to get a warrant to get access to the content of emails, but only for messages less than 6 months old. (The addresses the emails were sent to are another matter; I gather they can be obtained on the simply on request.) Cole says this has to do with the fact that email contents were rarely saved more the six months at the time the law was written, but this has changed now that storage has become so cheap. A Senate committee last year approved a bill to remove that six-month limit, requiring a warrant on all email message contents, but it’s yet to pass.

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