The weaknesses in ECPA have led some reporters’ rights advocates to focus on passing a federal shield law with features that counter some of the act’s more troublesome provisions. The Newspaper Association of America, for instance, is lobbying to add a stronger advance-notice requirement to the proposed shield law currently under consideration in Congress. This would pre-empt ECPA if the target of the search were a journalist, so he or she would be able to challenge the request in court.
There are notice requirements built into ECPA, but they are relatively weak: A warrant for content can be served to a service provider without notifying the account holder; and while a subpoena for content requires notice, that notice can be delayed. Take, again, the AP phone-records scandal. In his June speech to the National Press Club, AP CEO Gary Pruitt emphasized what a difference advance notice could have made. The Justice Department had seized the records of 20 individual and general office phone lines, sweeping up thousands of calls by more than 100 AP staffers—at least some of whom, presumably, were working on other stories with sources who expected their identities to be protected. “Had the DOJ come to us in advance, we could have helped them narrow the scope of the subpoena,” Pruitt said in his speech. “If AP and the DOJ did not agree, then a court could decide which was right.”
Government and law-enforcement agencies making requests under ECPA often take advantage of various exemptions in the law to waive advance notice, seal the requests, or attach “gag orders”—all of which keep the real targets of their investigations in the dark. That suggests a more fundamental problem for reporters: Even the best-written laws can be bent or broken. So while meaningful improvements to ECPA are likely to pass Congress, the burden remains on journalists to become literate in all the ways they can protect their sources and themselves.