The revelation that several weeks worth of Associated Press reporters’ and editors’ phone records were obtained in a federal investigation regarding a leak has outraged many in the media sphere, but an Oregon attorney as a message for them: you’re not the only ones.
“As much as I sympathize with the media … it’s kind of ‘welcome to the party guys,'” Kevin Sali, an attorney at Angeli Law, told TheBlaze in a phone interview Thursday.
“We’re seeing outrage now because it’s the media, but this sort of thing happens to people across the country everyday.”
But what would such records reveal?
As you can imagine, records reveal phone numbers called as well as date and duration. Sali said it would look very similar to what you would see on your own monthly statement.
What investigators are looking for are specific numbers, how often certain calls might be made, and sometimes certain timeframes in which communications are being had. It all depends on the case.
Atlanta-based Constitutional Attorney Page Pate said such information can also be used as leverage.
“If you have stuff I don’t want you to have, it makes me more likely to do what you want me to do,” Pate said, explaining how investigators could let suspects know they had already obtained their phone records.
Pate also said that in addition to incoming and outgoing calls, cellphone records would include text messages as well. Although content of the message would not likely be provided, the number associated with the conversation, when the conversation was held, and its duration would be recorded.
“These days, a toll request gets you more than 20 years ago, or five years ago,” he said.
Government investigators, following the appropriate guidelines, are legally able to obtain such phone records. Sali said he believes the breadth of the government’s “immense power” allowing it to obtain these records is what has some upset.
Pate said that some of the protocols that should have been followed to allow the government to subpoena the AP records do not appear to have been followed properly.
“Initially, I was amazed at how unprecedented and invasive this request was,” Pate told TheBlaze.
Not only were records for more than 20 AP phone lines obtained, but personal phones as well.
Pate noted how there is a provision in the Attorney’s Manual that requires the media be offered the opportunity to comply before a subpoena is issued. In the AP’s case, that doesn’t seem to have happened.
Pate acknowledged there is a provision that would allow the news organization to remain in the dark regarding its records being sought, but it would only occur if telling them would “pose a substantial threat to the integrity of the investigation.”
“But that’s just the point of it,” Pate said. “We don’t know because no one has provided documents.”
He said no reasoning has been provided to show how the investigation could be harmed if someone at the AP — not even those whose specific records were being sought — knew these subpoenas were coming. Pate also noted the lack of documentation regarding Attorney General Eric Holder being recused.
Here’s more from TheBlaze’s report of Holder’s testimony before the House Judiciary Committee Wednesday:
“On what date did you recuse yourself?” [Representative Spencer Bachus (R-AL)] asked.
“I’m not sure, I think it was towards the beginning of the matter,” Holder responded.
“Isn’t that sort of an unacceptable procedure? The statue says that the attorney general shall approve the subpoena. There was no memorandum, no email — when you recused yourself, was it in writing, was it orally? Did you tell someone, did you alert the White House?” Bachus probed.
“I would’ve told the deputy attorney general,” Holder replied, though he said there would be no record of it in writing.
Holder also said Tuesday that he wasn’t sure how often he had approved subpoena requests for phone records of the media, but noted he took them “very seriously.” Holder, since he recused himself of the investigation to avoid a conflict of interest, said he did not sign off on the subpoena request for AP phone records.
In his experience with such cases, government investigators usually seek phone records for about half of their investigations, even if it doesn’t intend to use the information, Pate told TheBlaze.
Going forward, Pate said he first hopes the Justice Department will “not be so sloppy in the way they follow their own requirements.” He continued, adding that he thinks the department needs to make sure that it actually follows guidelines that have long been in place.
“If you’re going to approve a subpoena like this, go through the process and have documents available …for whomever wants to review” it later, Pate said.
And while this would be helpful for news organizations, there is no requirement that private individuals or businesses whose phone records are being requested be notified or negotiated with for voluntary compliance prior.
Pate said it would be nice to see the same protection rights for news media provided to individuals and businesses as well.