The seizure of two months’ worth of Associated Press telephone records by the Department of Justice has created a media storm. At the front of it is David Schulz ’74, Knox trustee and lawyer representing the AP.
On May 10, the AP received a letter from the Justice Department informing them of the seizure, which was part of an investigation into a security leak regarding a foiled bomb plot. Records from more than 20 telephone lines were subpoenaed, involving four AP bureaus and potentially 100 journalists.
It is legal, but rare, for the Justice Department to seize records, provided it follows the rules governing the process – rules that Schulz said were broken in this case.
“Reporters are not shielded from criminal investigations,” he said. “But when the government is only after information that a reporter had in their role as a reporter, there should always be notice given.”
The first component of the seizure that raised eyebrows was the time period. It took approximately seven days from the time reporters received leaked information until it was published, yet two months’ worth of records were obtained.
Further restrictions mandate a narrowly-tailored request by the Justice Department in order to ensure that information not directly relevant is not compromised. Some of the reporters in question were also examining practices by the New York Police Department with respect to monitoring Muslims -an investigation that involved several confidential sources.
“How many confidential telephone calls were compromised? That’s a real problem,” Schulz said.
Typically, the Justice Department must give notice when it plans on obtaining journalists’ records, meaning that a news organization has time to go to court and have a judge independently assess whether accessing the records is justified.
“It’s troubling that none of that happened,” Schulz said. “Nobody could question what they wanted and what they were doing. Rummaging around without oversight raises a lot of troubling questions.”
Schulz hopes that the case will end with the Justice Department not only returning the seized records, but also updating its own rules and regulations, which were written before the widespread use of email and text messaging, and clarifying the requirements for narrowness.
Named “the top access litigator in the country” by Best Lawyers, Schulz, a partner at Levine Sullivan Koch & Schulz in New York, has worked on a variety of cases involving the media, including representing reporters covering the Guantanamo Commissions. He has also defended the Associated Press before in an invasion of privacy case involving the publishing of photographs of Navy SEALs detaining Iraqi prisoners.
In addition to his work in media law, Schulz has had a personal brush with freedom of speech concerns. While serving as editor-in-chief of The Knox Student in the 1970s, he was almost removed from his position due to a commentary printed by his arts editor. Schulz described the piece as a “personal attack in indiscreet terms” on a professor who had written a critical review of a student play.
“This episode made me realize the importance of free speech and the importance of rules and regulations to protect a zone for people to express themselves in,” Schulz said.
Although he can imagine situations in which the government would be justified in obtaining journalists’ records without giving notice – if there is cause to believe that a reporter may be engaging in illegal activity, for example – he feels that confidentiality must be kept by reporters in all but the most extraordinary circumstances.
“For the process of gathering news to work, reporters have to make promises of confidentiality that they can abide by,” Schulz said. “If you don’t have that, the only thing we will ever know about the government is what they want us to know, and that would be a terrible world to live in.”