Reporters’ privilege and personal data held by third party service providers – a brief consideration of The New York Times v. Gonzales

You have used a good deal of analytical energy to warn reporters not to take too great comfort from a subsidiary aspect of a case that they unambiguously lost. I don't think there's much likelihood that Gonzalez has been causing unjustified optimism among reporters or publishers.

Leaving aside your competent and energetic exposition of the case itself, your essay hinges on a single point you are making based on a side comment in that subsidiary part, distinguishing between telephone records and other traceable data concerning the conduct of reporters' investigations and the identity of their sources. You think this distinction thin, and suggest that leak investigations would still be successful even if phone records were unavailable because other data would show the identity of sources.

Phone records are special, however. Unlike the information that can show how a reporter moved around his beat or where he might have intersected the travels of a source, where the source has no plausible reason to speak to a reporter, phone records are the whole ball game.

But this doesn't really matter. We can all agree, at a higher level of abstraction, that preserving the untraceability of face to face meetings between reporters and confidential sources in the face of aggressive investigation by competent law enforcement agencies with time and money to spend is very hard. Privilege might be one reason why law enforcement agencies won't do it. But their own political self-interest and other regulatory restraints provide more and quite adequate reasons. Prosecutors tangle with press searches as they did in your illustrative case, where there is conduct they consider possible obstruction of justice, or where they can convince their superiors, who are politically responsible actors in one sense or another, that they have exhausted all other options. Leakers are found among the people prosecutors work for, after all.