NEFAC says Holder should push for shield law, train Justice personnel on subpoenas

Press release from New England First Amendment Coalition:  The New England First Amendment Coalition registered "extreme dismay" at the government seizure of phone records of The Associated Press and urged Attorney General Eric Holder to work for passage of a federal shield law and take other steps to avert a repeat of the intrusion that was part of a probe into a security leak.

A letter from Rosanna Cavanagh, NEFAC's executive director, to Holder and Deputy Attorney General James M. Cole said the snooping into 20 AP bureau and personal phone lines "indicates that a failure of supervision or leadership has occurred on your watch."

"Our First Amendment protections for freedom of the press embody our founders' vision that only an unfettered press can protect the free flow of information upon which any true democracy depends," Cavanagh said.

She quoted James Madison who wrote in his Report on the Virginia Resolutions that "a law inflicting penalties on printed publications would have a similar effect with a law authorizing a previous restraint on them. It would seem a mockery to say that no laws should be passed preventing publications from being made, but that laws might be passed for punishing them in case they should be made."

Cavanagh noted that a brake on unbridled government authority was even built into the Patriot Act passed in the wake of the 9/11 attacks and cited language in Section 215 that states:

"The Director of the Federal Bureau of Investigation or a designee of the Director…may make an application for an order requiring the production of any tangible things (including books, records, papers, documents, and other items) for an investigation to protect against international terrorism or clandestine intelligence activities, provided that such investigation of a United States person is not conducted solely upon the basis of activities protected by the First Amendment to the Constitution."

NEFAC joined with other groups, including the Reporters Committee for Freedom of the Press, the National Press Club, the Society of Professional Journalists and the California Newspaper Publishers Association in calling on Holder to immediately return the seized records to the AP.

Cavanagh also pointed out that Justice Department regulations on subpoenas of the news media include five limiting criteria apparently ignored in the AP's case.

"There was no attempt to narrow the scope of the records obtained, no information given to The Associated Press prior to obtaining such an incredible number of phone records, no attempt to negotiate, no approval by the Attorney General, and utter disregard of the public's interest in free dissemination of ideas and information," Cavanagh said.

In addition to taking a lead role in adoption of a federal shield law and returning the AP's records, Cavanagh asked Holder to suspend subpoenas for press data or telephone records pending further training on Justice Department guidelines.