Leak Prosecutions and the First Amendment: New Developments and a Closer Look at the Feasibility of Protecting Leakers

III. POST-9/11 DEVELOPMENTS AND THEIR IMPACT ON THE "UNRULY CONTEST" A. New Developments and Arguments that These Developments Strengthen the Government's Hand Over the past few years, commentators, myself included, have pointed to what we deem game changers in the unruly contest--developments that tilt the game too far in favor of the government. (102) These developments include the Obama Administration's unprecedented number of leak prosecutions and new technological and legal tools that enable the government to track down leakers more easily than in the past. (103) The government's new capacities are reflected in an exchange that Lucy Dalglish, former executive director of the Reporters Committee for Freedom of the Press, had with an intelligence official at a conference. (104) The official told her that a subpoena for reporter James Risen--still being appealed as of this writing--"is one of the last you'll see.... We don't need to ask you who you're talking to. We know." (105) The official surely was referring to the fact that evidence of journalist-source contacts can be found through phone and e-mail records, and through electronic indicia of travel and in-person meetings. The Obama Administration has followed such tracks in part through third-party subpoenas to communications, credit card, and bank companies. (106) Matthew Miller, a former spokesman for Attorney General Eric Holder, cited such tools as one reason for the number of recent prosecutions. (107) He explained that "'a number of cases popped up that were easier to prosecute' with 'electronic evidence'.... 'Before, you needed to have the leaker admit it, which doesn't happen' ... 'or the reporter to testify about it, which doesn't happen.'" (108) Indeed, the most old fashioned of journalist source meet-ups are vulnerable to electronic discovery: "Even meetings in dark parking garages a la Bob Woodward in All the President's Men are not safe if a camera captures footage of every person that comes in and out." (109) Journalists report that these new realities, along with high-profile revelations of broader government surveillance activities, particularly Edward Snowden's explosive disclosures regarding NSA's surveillance capacities and activities, have chilled their communications with sources. (110) Scott Shane of the New York Times observes that "[m] ost people are deterred by those leak prosecutions. They're scared to death. There's a gray zone between classified and unclassified information, and most sources were in that gray zone. Sources are now afraid to enter that gray zone. It's having a deterrent effect." (111) Shane notes that some sources explicitly cite the recent spate of leak prosecutions in "rebuffing a request for background information." (112) Washington Post reporter Rajiv Chandrasekaran echoes Shane's reference to gray areas, explaining that "one of the most pernicious effects is the chilling effect created across government on matters that are less sensitive but certainly in the public interest as a check on government and elected officials." (113) Two particularly striking revelations came to light in May 2013. First, the Obama administration acknowledged that it had, in investigating a 2012 Associated Press (AP) story a few months earlier, "secretly subpoenaed and seized all records for 20 AP telephone lines and switchboards for April and May of 2012." (114) Although the targeted story involved only five AP news reporters and an editor, the seized records covered '"thousands and thousands of newsgathering calls' by more than 100 AP journalists using newsroom, home, and mobile phones." (115) This event occurred despite four-decades-old Department of Justice regulations substantially restricting the occasions and procedures whereby journalists or their communications records can be subpoenaed. (116) The regulations require, among other things, that subpoenas be used only as "last resort[s]" in federal investigations, that they be '"as narrowly drawn as possible,' [and] that the targeted news organization[s] 'be given reasonable and timely notice' to negotiate the subpoena [s] with Justice or to fight [them] in court" except where such "negotiations would 'pose a substantial threat to the integrity of the investigation. …