Government Accessing Electronic Communications to Identify Sources: It Can Happen to You
Published June 2021
The revelations that the U.S. Justice Department secretly sought information on reporters’ e-mail, phone and other communications has sent shock waves through media and political circles in Washington, D.C. The Justice Department sought the information directly from communication providers in order to identify the sources of various leaks of government information. It also obtained gag orders barring editors and lawyers at the reporters’ news organizations and the communications providers from informing the reporters that their information was being pursued.
The disclosures led President Biden and Attorney General Merrick Garland to pledge that the federal government would no longer do this, even though both the Trump and Obama administrations also used this technique. But while reporters, editors and publishers both inside and outside of Washington who are concerned about press freedom may view these events with concern, for those beyond the Beltway it likely seems a faraway issue involving high-stakes reporting on national security matters and the like, which isn’t like the local news coverage they do.
But they would be wrong. For there have been numerous instances where local law enforcement have used similar methods to investigate leaks of information with way less apparent importance than national security.
Subpoenas seeking information from the media are not uncommon: the U.S. Press Freedom Tracker counts at least 106 journalists who have been subpoenaed or had their records seized since 2017, and each instance raises serious First Amendment concerns. Many states, including South Carolina, have passed shield laws that limit when courts can issue such subpoenas.
But modern technology offers a work-around alternative to seeking information about sources from reporters: investigators can get the information from reporters’ messaging, e-mail and phone service providers. Under the U.S. Supreme Court’s “third party doctrine,” when a reporter uses a provider to send and receive phone calls, e-mail or other communication, the government can obtain from that provider without confronting any shield laws or privacy issues. After all, the reporter has already “willingly” shared her communications with the provider, so there is no privacy issue. There are other legal loopholes that allow government access in other ways.
Besides the federal Justice Department efforts that garnered so much recent attention, state and local police forces have also used this technique. Such efforts to obtain reporters’ communications records have occurred several times: in New York City in 2020 (twice), McHenry County, Illinois in 2020, San Francisco in 2019, in a civil suit in Washington, D.C. in 2018, and in St. Paul, Minnesota in 2007. And these are just the incidents that were revealed and received media coverage; there likely have been other cases as well.
The publicity and backlash over the recent use of this method of discovering reporters’ confidential sources may be blocked at the federal level—at least for now—but this technique is likely to still be attractive to local prosecutors beyond the capital. As a result, reporters and their employers have to consider various techniques to stymie such efforts.
Eric P. Robinson focuses on media and internet law as assistant professor at the USC School of Journalism and Mass Communication and Of Counsel to Fenno Law in Charleston / Mount Pleasant. He has worked in media law for more than 20 years and is admitted to legal practice in New York and New Jersey and before the U.S. Supreme Court. This column is for educational purposes only; it does not constitute legal advice. Any opinions are his own, not necessarily those of his employers.