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

The government’s ability to access an ever-expanding range of records and data held by third parties in relation to individual citizens has long been an integral aspect of criminal investigations and law enforcement activities. A short time ago the issue came before the Court of Appeals for the Second Circuit in The New York Times Company v. Gonzales, 459 F.3d 160 (2006). In Gonzales, the Second Circuit was asked to determine whether the United States District Court for the Southern District of New York had erred in granting a declaratory judgment in favor of The New York Times, stating that its reporters’ telephone records held by third parties were privileged from a potential grand jury subpoena. A brief analysis of some of the reasoning offered by the Second Circuit suggests that the case is a good example of the way in which many judges’ perceptions of the reach and effect of governmental efforts to acquire personal data from third party intermediaries are noticeably out of step with the modern reality of the kinds of uses that can be made of such information thanks to the enhanced methods of surveillance and data mining that law enforcement agencies have at their disposal. The result creates many opportunities for the government to exploit the significant gaps that are emerging between the law’s conception of the realities it is responding to, and the rapidly evolving technological capabilities of the state.

The facts of Gonzales

In the wake of the 9/11 terrorist attacks, the federal government intensified investigations into the financing of terrorist activities by organizations raising funds in the United States. During the course of those investigations, the government resolved to freeze the assets and/or search the premises of two charitable foundations. Two reporters from The New York Times learned of the identities of the foundations through confidential sources, and contacted both organizations seeking comments on the upcoming searches. The government, believing that the reporters’ actions had compromised the effectiveness of the subsequent raids, launched a grand jury investigation into the disclosure of its plans regarding the foundations. It demanded access to the reporters’ phone records, and when the reporters refused to co-operate, the government threatened to obtain the phone records from third party service providers. The New York Times sought and obtained a declaratory judgment that the phone records of its reporters in the hands of third party telephone providers were shielded from a grand jury subpoena by reporter’s privileges arising out of both the common law and the First Amendment. The government subsequently appealed to the Second Circuit.

The Second Circuit’s approach

A majority of the Second Circuit, comprised of Justices Winter and Kearse, held that whilst the specific facts of Gonzales did not give rise to an applicable federal common law or First Amendment privilege against disclosure of information relating to confidential sources in response to a grand jury subpoena, theoretically any such privilege would, as a matter of law, extend to the phone records of a newspaper or reporter in the possession of a third party provider. The Court concluded that whilst the district court had not abused its discretion by entertaining the Times’s application for declaratory relief, the nature of the government’s interest in seeking disclosure of the relevant telephone records was sufficient to overcome any common law privilege, and no First Amendment privilege could operate to shield the records from production.

For present purposes, the critical aspect of the majority’s reasoning concerned the rationale for including phone records held by third parties within the scope of protection afforded by any reporter’s privilege. The majority chose to apply the test elucidated in Local 1814, International Longshoremen’s Ass’n, AFL-CIO v. Waterfront Commission, 667 F.2d 267 (2d Cir.1981), which states that where a third party plays an “integral role” in reporters’ work, any records held by the third party detailing that work will be covered by the same privileges afforded to the reporters themselves and are therefore protected from compelled disclosure. Applying this standard, the majority in Gonzales concluded that telephone records held by third party service providers will fall within the scope of protection because the telephone is “an essential tool of modern journalism and plays an integral role in the collection of information by reporters”. Crucially, the Court went on to suggest that under the Longshoremen’s ‘integral role’ standard, telephone records may be distinguishable from travel records held by third parties such as hotels, airlines, and taxicab companies.

The implications of this approach within the context of modern data mining techniques ought to make journalists who deal with confidential sources think very carefully about whether they can afford to draw any genuine comfort from the approach taken by the Gonzales Court to personal data held by third parties. Certainly it may be argued that email, like telephone services, warrants protection on the basis of playing an integral role in the collection of information by reporters. However, the Gonzales majority’s comments on travel records appear to reflect a collective failure to appreciate the relative ease with which organs of the state may now employ technology to efficiently analyze a wealth of seemingly innocuous data held by third parties (such as bank records and credit card transactions) in order to obtain a highly accurate picture of the patterns of a given individual’s past or current movements and behavior. The point seems to have been missed not only by the majority but also by Justice Sack, who, in his dissenting opinion, observed that:

"Without [the protection afforded to telephone records held by third party service providers], prosecutors, limited only by their own self-restraint, could obtain records that identify journalists’ confidential sources in gross and virtually at will. Reporters might find themselves, as a matter of practical necessity, contacting sources the way I understand drug dealers reach theirs – by use of clandestine cell phones and meetings in darkened doorways."

In an era where law enforcement agencies routinely access network information that can pinpoint the precise location of a cell phone in real time (and where access to such information is not dependent upon first obtaining a search warrant), Justice Sack might be surprised to learn that the days when “clandestine cell phones” and “darkened doorways” could pose credible challenges to the investigative reach of the authorities are long gone. Tellingly, the record in Gonzales reveals that both the government and the relevant telephone service provider expressly disavowed the notion that either of them had any obligation to notify the Times of the existence of the subpoena seeking its reporters’ phone records. If the Gonzales Court was concerned by the specter of the government obtaining third party records “in gross and virtually at will”, the ultimate irony lies in the fact that the Second Circuit’s ruling does little to prevent a doomsday hypothetical that is far closer to reality than the justices appear to have ever bargained for.

Conclusion

Reporters should be wary of overstating the significance of the Second Circuit’s willingness in Gonzales to embrace a potential expansion of the degree of protection afforded to journalists’ personal data in the hands of third party service providers. Even outside the context of so-called ‘leak’ investigations, and bearing in mind the uncertainty regarding whether federal courts will ever agree to formally recognize a common law privilege for reporters, the denial of access to journalists’ telephone records in the possession of third parties represents, at most, a minor setback to the government’s data-gathering capabilities. It may be time to ask whether, in the 21st century, the notion of the ‘confidential source’ held in such reverence by journalistic folklore ought to be labeled an endangered species.

-- RicoJ - 31 Mar 2010

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.