Media Memo

   Question: When and how is it OK for government to track news reporters in its efforts to gather evidence and prosecute wrongdoers?
   Put another way, is the news media an investigative arm of the government?

   Supposedly, reporters notes cannot be subpoenaed and reporters can't be ordered to reveal their sources. This is true in many states, but there is no federal shield law protecting reporters. Even so, on the state level many reporters avoid the problem by not saving their notes. That way, if they are called to testify, they can stand by what appeared in print, and as for anything else, they don't remember. Some police do something similar; once an investigation is complete and written up, notes are destroyed.
   So to get around a legal ban on rummaging through a reporter's notes and research materials, including phone records and email messages, the FBI has labeled a news reporter a co-conspirator, and therefore fair game for prosecutors.
   In this reporter's experience, it was pointless to ask the FBI for information on a particular story. The standard response was, "We never comment on investigations. We don't even acknowledge that there is an investigation. So tell me, what do you know?"
   This reporter's answer: "I'm not an investigative arm of the government. Anything I do know you can read about in tomorrow's paper, along with everyone else."

   For some lawmen, however, that's not enough. They want to know a reporter's sources, as well as information that was not printed, speculative and otherwise, as well as why a reporter chose not to use it.
   In short, they want to recruit news reporters into becoming researchers and investigators -- willingly or otherwise -- for prosecutors. And one way to do that is to threaten and/or charge reporters as co-conspirators -- accuse them of being part of a criminal enterprise, since they know something about what's going on. In recent years, this was a common tactic used as part of government efforts to find and plug leaks. (Politicians like to control the message and the information flow.)
   Leaks and confidential sources have long been standard in the news media tool kit for uncovering stories that expose political goofs. And government types are equally adept at finding ways to cover themselves. Some of these ways, however, cross a moral, if not a legal, line and become unconstitutional. Some grossly so, by nature of being secret.
   
   Thus it was with the National Security Administration. In its zeal and in the name of national security, the NSA would scoop up myriad amounts of information, including the number and duration of telephone calls made from one location to another, the number and types of email messages -- text and graphic as well as video -- from one user to others, and look for patterns that would, they hoped, reveal potential terrorist suspects. And that's the program that was exposed by news reporters, who were given the information by an NSA contract employee named Edward Snowden.
   The Administration claims it was not monitoring phone calls or reading email stuff, especially that stuff sent by American citizens, except if it was going to or from countries and regions that potentially harbored terrorists.
   There's an awful lot of ifs, excepts, unlesses, potentials and maybes in there. And now, the Attorney General, after all the flap about the exposure of the governments super dooper scooper snooper program, says the government is revising its guidelines as to what and how the FBI can deal with reporters in its leak-plugging efforts.
   Naughty, naughty, says the boss. Don't do that again. Here's how you should do it, if you really need to. So if you don't trust the traditional news media accounts of the government's new plan, you can read the new guidelines for yourself. It's called the "Report on Review of News Media Policies." It's dated July 12, 2013, and it's available on the Department of Justice web site. Here's a link: http://www.justice.gov/opa/pr/2013/July/13-ag-783.html. This displays a statement by Attorney General Eric Holder on the release of the report, and carries a further link to the report itself.

   As for the privacy issue, and whether government has any business, right or duty to monitor citizen communication and /or to encourage members of corporate America to provide their data stock to the scoopers, consider this: Europeans have long had a practically inbred suspicion of anything that smacks of secret police activity, and efforts to get folks to fink on their neighbors. There is such a thing a privacy, they say. And in France, officials are considering lawsuits against American data companies that give stuff to the U.S. government about French citizens. This violates French privacy laws, they say.
   So the French are mad as hell, and they're not gonna take it any more.

   And they're not the only ones. Ask people in Germany and those from the former Soviet countries about secret police.
   It can't happen here, you say? On the contrary, it can, and very nearly did. And not just in fiction.

   Finally, keep in mind this blogger's motto: Belief without thought endangers freedom.