Wednesday, April 20, 2011

Privacy, Wire Tapping & Journalist's


On 9/11 the world as we know it changed in ways we were aware of, and in other ways that citizens had no inkling about.


Soon after the attacks in an attempt to track suspected terrorist activity, President Bush issued an executive order authorizing the National Security Agency (NSA) to conduct surveillance of phone calls without obtaining a warrant from the without obtaining authorization from the Foreign Intelligence Surveillance Court (FISA) as called for as directed by the 1978 Foreign Intelligence Security Act (FISA).

First Light

The New York Times first reported the existence of the program on December 16 2005"Months after the Sept. 11 attacks, President Bush secretly authorized the National Security Agency (NSA) to eavesdrop on Americans and others inside the United States to search for evidence of terrorist activity without the court-approved warrants ordinarily required for domestic spying, according to government officials."

The president at the time and the administration claimed it had the right to secretly observe citizens without a warrant.

A Case Study

Lawrence Wright, was one person the NSA had “warrant less taps” on.
The problem in this particular case is Wright is a journalist, film-maker, and Pulitzer Prize-winning author of "The Looming Tower: Al-Qaeda and the Road to 9/11" which was turned into an HBO Documentary.
Wright told his story to National Public Radio in an interview on February 6 2009.
“...they (Federal Agents) began asking if the person on our end of the call, my end, was named Caroline. And that’s my daughter’s name. And they asked, you know, is her name Caroline Brown? And I said, no, she’s, you know, a student at Brown. But I said, her name’s not on any of our phones. How do you know this information? Are you listening to my calls?"

Wright the journalist about everything on Al-Qaeda at the time had his privacy invaded seemingly "working a story."

Can this be done? What are the rights of journalist's in such an instance? Can our government gathers, analyze, and disseminate information furtively from the member of the press?

A Brief History of Protections for Journalists

The Privacy Protection Act (PPA) of 1980 is a piece of legislation which goes to the heart of the matter. Coming to fruition as a Congressional response to Zurcher v. Stanford Daily, 436 U.S. 547 (1978). That case arose when police conducted a warranted search of the Stanford Daily's newsroom seeking photos of a demonstration at which officers were injured. Staff of the paper attended the reported violent demonstration, photographed it and ran the story the following day.

The publication challenged the search in federal district court, which concluded the search unlawful saying “"[i]t should be apparent that means less drastic than a search warrant do exist for obtaining materials in possession of a third party." Therefore, in most cases, "a subpoena duces tecum is the proper -- and required -- method of obtaining material from a third party."

Subsequently, The Court of Appeals affirmed per curiam the District Court's finding that the search was illegal. However, the Supreme Court of the United States held that neither the First nor Fourth Amendment prohibited this search. The Court stated: "Under existing law, valid warrants may be issued to search any property, whether or not occupied by a third party, at which there is probable cause to believe that fruits, instrumentalities, or evidence of a crime will be found. Nothing on the face of the Amendment suggests that a third-party search warrant should not normally issue."

The Aftermath

Two years after the Zurcher ruling Congress passed the Federal PPA to overrule the position of the Supreme Court. The principle being journalists have a need to gather information and disseminate it without the shadow of governmental interference looming over them.

In furtherance of that idea, and more importantly for citizens of the United States on March 31 2010 Federal Judge Vaughn R. Walker chief Judge of the Federal District Court in San Francisco ruled the eavesdropping program illegal, concluding "it violated 1978 Federal Statute requiring court approval for domestic surveillance... "and ."..would enable government officials to flout the warrant law, even though Congress had enacted it “specifically to rein in and create a judicial check for executive-branch abuses of surveillance authority.”

In light of this recent decision, and prior to it, Justice Department Spokeswoman Tracy Schamler said, "The Obama administration, had overhauled the department’s procedures for invoking the state-secrets privilege, requiring senior officials to personally approve any assertion before lawyers could make it in court. She said that approach would ensure that the privilege was invoked only when “absolutely necessary to protect national security.”

Conclusion & Notes

Justice Black said it best in the "Pentagon Papers" case, “Paramount among the responsibilities of a free press is the duty to prevent any part of the government from deceiving the people and sending them off to distant lands to die of foreign fevers and foreign shot and shell.”

The right of the press to perform its essential function as an "Unofficial Fourth Branch of Government" (Columbia Journalism Review, 2010) and report information need always be free of a governmental ghost is paramount to the freedoms guaranteed in The First Amendment.

If those freedoms are curtailed interfered with, or abridged in any way, we need only look at the recent events in the Middle East as a reference point in what can happened to journalists on the wrong side of the globe.

It is said "The Duty of Government, is to Protect the Powerless, Against the Powerful." In the case of Lawrence Wright, who's supposed to be protecting him?

Answer: The Privacy Protection Act (PPA)

Note: Wright wrote the Screen Play for the movie "The Seige" (1998) before the events of 9/11.

If you never saw it-The Movie starring Denzell Washington and Bruce Willis tells the story New York being bombed by terrorists, Marshall Law being implemented, and US Troops roaming the streets of New York City.

You can find Wrights HBO Special on YouTube at this link

His Interview with National Public Radio

Its Beyond the surreal.

Jeff Bohen

Journalism & Law

WHIP Student Run Radio

Host "Run Down"

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  1. Your article is not complete. There's no mention of the Patriot Act which was passed by Congress, and renewed.This piece of legislation should not be ignored. Reporters and writers have some protection from the states to protect their sources but they essentially stand in the same legal stead as the people of the United States. . Also, would your argument change if wiretaps were what led to the capture and assasination of Osama Bin Laden?

  2. I thought of the Patriot Act, and felt it could be a part of the post, but decided against it because I was covering criminal behavior on the part of the government and its illegal wire tapping.

    The PPA is the federal law on the books that protects journalist's while performing the work of journalism-that's the protection that was broken in this case....

    There is a significant difference in terms of wire tapping with the idea of potentially catching Bin Laden via possible conversations Wright might have had, and listening in too his daughter.

    As much as Mr Wright is the go to journalist for coverage of terrorists's, his daughter is not and was not a source of any kind so I would say no in answer to your question Professor.

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