What news organizations can do, says Burton, is negotiate contracts with their vendors and service providers that require them to provide notice of any subpoenas with which they are served. “What the press can do is say, ‘If we’re going to give you our business, then in exchange for that business we need to be given notice,’” says Burton. “I don’t mean to say this is easy; we have fought voraciously over single sentences in agreements. But the fact that it takes time and energy doesn’t mean you shouldn’t do it.”

Burton also notes that telecommunication companies could opt to notify their clients when they receive a subpoena even without a contractual stipulation. “When the government issues a subpoena they say don’t tell anybody, but that’s not legally enforceable,” Burton says.

Having notice does not necessarily mean that news organizations will be able to prevent their information from being obtained by law enforcement; it does, however, provide the opportunity to challenge the subpoena on First Amendment grounds and, where an explicit agreement exists, contractual grounds as well. “Maybe in the end you still lose,” concedes Burton, but “if the press wants to be in a position to protect itself, it needs to have those provisions requiring notice.”

Beyond the legal recourse such policies would provide, Burton believes they will make government agencies less likely to rely on subpoenas to obtain information. “If you have these provisions, the government will go after somebody else,” she says.

“I’m not critical of the government for doing their job,” Burton says, “but in the end if the telecommunications companies hadn’t given them that information they would have come to the AP and tried to cut a deal that made sense for both sides.”

“What’s troubling,” she says, “is that the telecommunications companies are an arm of the government now.”

Kathleen P. Duff contributed research.

Disclosure: CJR has received funding from the Motion Picture Association of America (MPAA) to cover intellectual-property issues, but the organization has no influence on the content.

 

Susan McGregor is an Assistant Professor at Columbia School of Journalism with the Tow Center for Digital Journalism. In 2011, she was named as a winner in the Gerald Loeb Awards’ “Online Enterprise” category for her work on the Wall Street Journal’s “What They Know” series.