Magazine article Editor & Publisher

Protecting Phone Records

Magazine article Editor & Publisher

Protecting Phone Records

Article excerpt

As you read this, it is possible that federal agents are looking over your telephone records and maybe those of people you have called in the past few months -- your friends, family, business associates and even confidential sources.

This all can be done without your prior knowledge or approval. You do not even have the option of objecting, of going to jail to protect these records, as you might to shield the identity of a source.

This is not some Orwellian vision, but the situation experienced by journalists recently in a series of cases when records of their toll calls have been turned over by telephone companies to federal agencies that subpoenaed the information.

In some cases, the journalists did not learn of the subpoenas until well after the agencies had the information.

One of the most highly publicized recent cases of an attempt to subpoena journalists' toll-call logs came during a Senate investigation of leaked information about sexual harassment allegations against Supreme Court Justice Clarence Thomas.

The Senate's special independent counsel, Peter Fleming, sought the telephone records of Newsday and its reporter Timothy Phelps, and of National Public Radio correspondent Nina Totenberg. Although Washington Times reporters Paul Rodriguez and Jerry Seper also were subpoenaed, there was no move to obtain their phone records (E&P, March 21, P.26).

The journalists and their news organizations protested the telephone subpoenas- as well as other attempts to uncover their sources -- and the chairman and ranking member of the Senate Committee on Rules and Administration supported their objections.

They were fortunate but, as Newsday's Washington bureau chief Gaylord Shaw later explained, the notice of the telephone subpoena was almost thrown away; addressed only to "occupant" at the bureau's address, it looked more like junk mail than an official notification.

Since then, journalists at the Alicia Patterson Foundation in Washington, D.C., found out four months after the fact that their telephone records had been turned over to federal agents; and then only because the secrecy request had lapsed. The foundation also was notified by a C&P Telephone form letter.

What also was shocking was that the foundation's records were sought as part of an investigation that had nothing to do with its activities.

Free-lance journalist Gregory Millman wrote an article for Corporate Finance magazine in September 1991 -- five months before beginning his fellowship at the foundation -- that showed how the Internal Revenue Service was remiss in collecting millions of dollars in taxes owed by big corporations. The article quoted from IRS documents given to Millman by a confidential source.

Shortly after the article appeared, the IRS 'called in the Treasury and Justice departments to conduct investigations.

Millman was visited at home by Treasury agents and his phone records were seized.

Also subpoenaed were the phone records of a personal friend of his and two Maryland companies that he contacted for unrelated stories.

"This fishing expedition appears to be an attempt to intimidate sources and stifle embarrassing stories. Although there is a legitimate concern with privacy of tax records, people and telephones unrelated to the issue have been swept into the Justice Department's electronic snooping," wrote Margaret Engel, a reporter on leave from the Washington Post who is serving as director of the Patterson Foundation, and the foundation chairman, journalist Joseph P. …

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