Law Enforcement Investigations Involving Journalists
Chapter 10 in Whistleblowers, Leaks and the Media: The First Amendment and National Security (2014).
How is the government able to investigate former National Security Agency employee Thomas A. Drake and former CIA employee Jeffrey Alexander Sterling for their leaks to journalists? What legal tools can federal law enforcement use to obtain the identity of a leaker and reveal information about the leak? What constitutional and statutory safeguards exist to protect media recipients of the leak, like the reporters James Risen of The New York Times and James Rosen of Fox News? Do internal guidelines at the Department of Justice shape its behavior? This chapter will answer these questions. The legal tools available to the government to investigate leaks of classified information can be divided into three overarching categories: 1. compelling the recipient of the leak to disclose information about the whistleblower and the leak through a conventional search warrant or subpoena; 2. obtaining information about the whistleblower and the leak through contemporaneous surveillance as authorized by laws such as the Wiretap Act and the Electronic Communications Privacy Act; 3. retrieving information from third parties about the whistleblower and the leak through subpoenas, search warrants, and court orders authorized by laws such as the Stored Communications Act. These investigatory powers are limited, of course, by the First and Fourth Amendments. In addition, Congress and state legislatures often pass legislation extending legal protections to journalists when the Supreme Court refuses to recognize Fourth Amendment protections or First Amendment safeguards. Where legislation has been enacted, however, the power of both the government’s investigatory tools and protections for journalists can vary tremendously from one jurisdiction to another.