No Oversight in Seizure of AP Phone Records

No Oversight in Seizure of AP Phone Records May 21, 2013

The story of the DOJ seizing phone records of reporters from the Associated Press just gets worse and worse. I had asked in the immediate aftermath whether the DOJ had gotten a judicial subpoena or merely used an administrative one; the answer is the latter, which means no oversight at all from a judge. And Verizon turned those records over immediately:

When the feds came knocking for AP journalists’ call records last year, Verizon apparently turned the data over with no questions asked. The New York Times, citing an AP employee, reported Tuesday that at least two of the reporters’ personal cellphone records “were provided to the government by Verizon Wireless without any attempt to obtain permission to tell them so the reporters could ask a court to quash the subpoena.”…

Controversially, the AP was not given advance notice of the seizure, which is consideredthe usual protocol when the government is seeking to obtain journalists’ records. However, Verizon Wireless could have notified the reporters, which may have helped them challenge its legality. Companies like Dropbox and Twitter have made it their policy to inform users (whenever possible) that the government is seeking access to their data, and Twitter has been applauded for how it has been willing to challenge authorities’ surveillance attempts in court. But Verizon—like AT&T, Facebook, and Comcast—has beencriticized in the past for its lack of willingness to stand up for users’ privacy rights, which suggests its decision to hand over AP reporters’ records is true to form. The company has been rated as one of the worst in the United States for three consecutive years in the Electronic Frontier Foundation’s annual “Who Has Your Back?” reports.

Now let’s rewind the clock to 2008, when the Senate was debating the FISA amendments bill. Then-Senator Obama publicly pledged that if that bill included immunity for the telecom companies from any civil suits arising from their turning over of information to the government without a warrant, he would filibuster the bill. Not only did he not filibuster the bill, which did include telecom immunity, he voted for it. And here we have a major telecom company turning over phone records of reporters to the FBI with no warrants at all, as required by the 4th Amendment.

The DOJ/FBI didn’t have to go to a judge and show that the seizure of those records was necessary and justified, they only had to sign off on it themselves. There is a reason why the Constitution includes such safeguards, because if you don’t have any checks at all on what one branch of the government can do, abuses are inevitable. We should have learned this from the FBI’s decades-long campaign to undermine civil rights groups with illegal wiretaps and other misconduct.

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