Leak prosecutions and the First Amendment: new developments and a closer look at the feasibility of protecting leakers.

• Author: Kitrosser, Heidi
• Position: III. Post-9/11 Developments and the Impact on the "Unruly Contest" through Conclusion, with footnotes, p. 1247-1277

3. POST-9/11 DEVELOPMENTS AND THEIR IMPACT ON THE "UNRULY CONTEST"

   1. 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.'" (117) Second, three-year-old court records were unsealed, revealing that the administration had, in 2010, secretly obtained a subpoena to access journalist James Rosen's telephone and e-mail records as part of a leak investigation. (118) To support its subpoena application, the administration had stated via affidavit that Rosen himself had probably violated the Espionage Act as "an aider, abettor, and/or coconspirator" in the leak. (119)

      The 2013 AP subpoena "only came out because the Justice Department used a grand jury subpoena; according to its internal rules, such a request must be made public within ninety days." (120) In contrast, had the government "employed a national security letter ... the request for phone records would likely still be secret." (121) Jack Balkin cites this distinction in contrasting what he calls "old school" tools to police speech, such as subpoenas, with "new school" tools, including national security letters (NSLs). (122) Like third-party subpoenas, NSLs can be used to demand that entities, including bank, credit card, or communications companies, turn over information about their customers. (123) What is special about NSLs is that "they can be issued by executive officials without a judicial warrant or a hearing," and they "normally come with a gag order. The recipient may not reveal the contents of the NSL or the fact that it exists, and recipients are subject to the gag order until the government releases them, which it may never do." (124) Balkin observes that "[t]ens of thousands of NSLs are issued secretly every year, and those who know the most about the practice and its consequences are forbidden to speak about it." (125) Balkin cites NSLs to exemplify the larger phenomenon of "new school" tools to regulate speech. One hallmark of new school regulatory tools is their cooption of private enterprises to block the speech of, deliver information about, or otherwise impact their clients or other private actors in accord with government wishes. (126) Another hallmark of new school tools is that they "emphasize[] ... low salience (or invisibility) rather than chilling effects. Both the state and the owners of private infrastructure may prefer that filtering, blocking, and surveilling be largely invisible to the general public, so that their operations appear normal, unobtrusive, and inoffensive." (127)

      At first glance, journalistic and scholarly concerns over chilling effect may seem to conflict with Balkin's observation that new school speech regulations are directed less at chilling and more at encouraging "most people to chill out." (128) Yet the two phenomena can and apparently do quite readily coexist. Such coexistence stems from the fact that investigative tools are comprised of a mix of "known knowns," "known unknowns," and "unknown unknowns." Known knowns include the fact of multiple prosecutions, hard-line statements by the administration, and investigative tactics engaged in openly or revealed after the fact. Known unknowns are exemplified by the fact that we know that thousands of NSL letters have been issued, yet we may never learn to whom many of them are directed. Unknown unknowns include the possible existence of other surveillance techniques about which we do not know, but which there is reasonable basis to guess exist in light of facts that have surfaced over the years, like those revealed by Snowden.

   2. The View that New Developments Do Not Strengthen, and May Weaken, the Government's Hand

      The core response to concerns over heightened antileaker aggression is that they simply are overblown. A number of commentators point out that although the percentage increase in leak prosecutions in the Obama Administration has been dramatic, the raw number of prosecutions remains quite small. For example, Jack Goldsmith argues that "the number of prosecutions [in the Obama administration] has been very small, as has the overall effort, compared to the overall number of leaks." (129) David Pozen also observes, without drawing a definitive normative conclusion as to the legal protections due to leakers, that "it is important to keep statistical as well as historical perspective. Against a backdrop of'routine daily' classified information leaks, a suite of eight prosecutions looks more like a special operation than a war." (130) And Gabriel Schoenfeld, writing in 2010 from an executive discretion perspective, challenged perceptions of prosecutorial overreach by citing the then-prevailing total of three convictions in U.S. history. (131) Schoenfeld protested that "[tjhree successful prosecutions for leaking classified information over the course of the last thirty years--indeed, three such cases in total over the entire sweep of American history--does not exactly constitute a reign of terror." (132)

      Commentators also suggest that if the uptick in prosecutions signifies anything, it is the government's tougher-than-ever task of protecting necessary national security secrets. As Goldsmith puts it, the Obama Administration's prosecution record and investigative tactics simply mark "an attempt--and almost certainly a losing one--to restore the equilibrium that prevailed before 9/11." (133) Goldsmith argues that intragovernmental concerns about the legality of certain controversial programs in the years since 9/11 have led to a spate of leaks. (134) This trend is bolstered by perceptions that the White House and top officials themselves share classified information regularly with members of the press. Goldsmith explains that "[widespread disrespect of the secrecy system at or near the top of government emboldened the unusual number of whistle-blowers further down who...