On the heels of the Associated Press hacking scandal, wherein the Justice Department revealed its utter lack of regard for the 1st and 4th Amendments and justified its actions through post-9/11 “national security” policies, a bipartisan group of House lawmakers has introduced legislation to prevent the government from engaging in secret warrantless phone hacking in the future.
Representatives Justin Amash (R-Mich.), Zoe Lofgren (D-Calif.), Jared Polis (D-Colo.) and Mick Mulvaney (R-S.C.) presented the Telephone Records Protection Act, HR 2014, in the lower Congressional chamber last week. The bill would require government investigators to attain the approval of a court any time they demand telephone records from service providers.
Current law dictates that the government can subpoena communication records unilaterally by way of what is known as an administrative subpoena, which is how the Justice Department seized the private information of dozens of AP reporters while investigating leaks from the CIA.
The Justice Department’s seizure of the AP’s phone records — likely without the sign-off of a single judge — raises serious 1st and 4th Amendment concerns.
“Regardless of whether DOJ violates the legitimate privacy expectations of reporters or ordinary Americans, we deserve to know that the Federal government can’t seize our records without judicial review,” Amash said.
Further vexing privacy advocates, it has also been reported that Justice Investigators not only pulled information from communication devices directly tied to AP, but also from cellphones — personal and work-related — belonging to the reporters it was investigating.
“I was honestly surprised to learn that the government could get this sort of private, personal information without a court order. If that is indeed the law, as the Department of Justice insists that it is, then the law needs to change,” Mulvaney said. “I am more than willing to acknowledge that there may be times that the government needs access to this sort of information. That being said, if the case in favor of acquiring this information is so compelling, it seems a requirement that the government get a court order should be no impediment to the conduct of a valid government investigation.”
The Telephone Records Protection Act would require the government to state “specific and articulable facts” to prove before a court that the information sought is “relevant and material to an ongoing criminal investigation.”
For now, Verizon, the telecom company that provided the government with much of the information it requested in the AP hacking case, has not commented on whether the current controversy will encourage a change in its policy with regard to how much information it is willing to provide government investigators without a court order.
The lawmakers’ bill would address a sobering reality that journalists are being forced to face as the hacking scandal remains in the spotlight. With developments in government “national security” policy in the years since 9/11, including language in the National Defense Authorization Act promising indefinite detention of citizens who associate with people the government deems terrorists, there no longer remains a way for journalists to provide the public with a complete story about individuals who find themselves on the wrong side of government without fearing for their own well-being.