Bipartisan Push to Prevent Phone Record Seizure Without Court Order

Associated Press

The Department of Justice came under fire this past week for its subpoena of Associated Press phone records without any notice to the news agency or targeted reporters. While Attorney General Eric Holder claims that the action was a response to a national security threat, it was actually part of the Obama Administration’s continuing war on whistleblowers and, as many see it, a shot directly at the free press, which is protected by the First Amendment.

The controversy has brought new attention on the need to protect Americans from this sort of government overreach. on Thursday, Reps. Justin Amash (R-MI), Zoe Lofgren (D-CA), Mick Mulvaney (R-SC), and Jared Polis (D-CO) joined together to introduce H.R. 2014, the Telephone Records Protection Act, which would protect all Americans from this sort of government overreach:

H.R. 2014, the Telephone Records Protection Act, requires court approval when the government demands telephone records from service providers. Current law allows the government to subpoena such records unilaterally, without any judicial review. The Department of Justice likely used its administrative subpoena authority to seize the Associated Press’s telephone records in its recent investigation of a CIA leak.

“The Justice Department’s seizure of the AP’s phone records—likely without the sign-off of a single judge—raises serious First and Fourth Amendment concerns. Regardless of whether DOJ violates the legitimate privacy expectations of reporters or ordinary Americans, we deserve to know that the federal government can’t seize our records without judicial review,” said Amash.

“Americans’ phone records deserve greater protection from the government than  a mere subpoena,” Lofgren said. “The lack of discretion of the Department of Justice with regard to the Associated Press has demonstrated weaknesses in our surveillance laws that impair the First Amendment. This bill takes necessary, but reasonable corrective action to strengthen the privacy of Americans’ phone records from the government.”

“I was honestly surprised to learn that the government could get this sort of private, personal information without a court order. If that is indeed the law, as the Department of Justice insists that it is, then the law needs to change,” said Mulvaney. “I am more than willing to acknowledge that there may be times that the government needs access to this sort of information. That being said, if the case in favor of acquiring this information is so compelling, it seems a requirement that the government get a court order should be no impediment to the conduct of a valid government investigation.”

Polis said, “Americans of all political stripes were shocked to find out that the Department of Justice had been accessing telephone records of reporters at the Associated Press. The Department of Justice claims that they operated within the confines of the law, which makes it abundantly clear that we need to provide a higher level of protection against government intrusion into an individual’s private records. I am excited to be working with Representatives Amash, Lofgren, and Mulvaney on this important privacy protection bill.”

This is a common sense solution to what is a real problem. The First and Fourth Amendments aren’t just suggestions, the right to free speech and the right to privacy are the law of the land. This continuing “war on terror” doesn’t provide government with carte blanche to ignore these liberties whenever they want. Congress has the responsibility to ensure that those rights are being protected, regardless of what party control the White House.

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