Tech giants must protect reporter-source privacy in leak cases

The first (publicly known) leak investigations by the Trump administration are here.

On March 14, 2025, Director of National Intelligence Tulsi Gabbard announced on X that the government is “aggressively pursuing recent leakers from within the Intelligence Community and will hold them accountable.” Gabbard’s post cited leaks to the Huffington Post, The Washington Post, NBC, and the news site The Record as examples.

There’s no indication yet that the investigations have swept up journalists. But the first Trump administration targeted reporters in an attempt to uncover sources as part of leak investigations, and news outlets have been bracing themselves for a repeat.

One lesson to be learned from the first Trump administration? Tech companies often must be the first to push back against government attempts to access journalists’ communications with their sources.

Leak investigations in Trump 1.0

To understand why, it’s important to remember the investigations initiated during President Donald Trump’s first term, and briefly continued under the Biden administration, that targeted reporters from The New York Times, The Washington Post, and CNN.

In 2020, the Department of Justice sought telephone and email records from reporters at each outlet in an attempt to identify their sources. But they didn’t demand those records from the journalists themselves — instead, they secretly demanded them from their telephone and email service providers.

The DOJ could do that because of the Stored Communications Act, a law that allows the government to issue a subpoena or get a search warrant or court order demanding access to certain stored communications records held by third party service providers. In some circumstances, the SCA also allows the DOJ to obtain a nondisclosure order that bars the provider from telling anyone about the demand, including the person whose records are being sought.

Of course, if the provider doesn’t have any records, it also won’t have anything to secretly turn over. That’s why we always recommend that journalists engaged in sensitive communications consider using end-to-end encrypted services like Signal, which also doesn’t collect or retain metadata about communications.

But when a provider does have relevant records of journalists’ sensitive electronic information — such as who they’re emailing and when — the SCA allows the DOJ to get a court order requiring that they be turned over to the government without the journalist knowing it’s happening or having the chance to object in advance.

As a result, the only entity that may be able to object to an overbroad or illegal order is the provider, that is, the tech company that holds the records. Thankfully, at least some of the service providers who received the DOJ’s demands for reporters’ records in 2020 objected on behalf of their customers.

For instance, Google, which ran The New York Times’ email system and received the court order targeting four Times reporters, resisted the demand and insisted that the Times be informed, as required by its contract with the news outlet. After the Times’ lawyers then objected to the order, the DOJ withdrew it. As a result, the government didn’t obtain any email records from the Times’ reporters.

DOJ guidelines on media subpoenas may not stand in the way

Following the revelation that the first Trump administration had sought records from news outlets, the DOJ strengthened its internal guidelines to bar prosecutors from secretly seeking journalists’ records in most cases. But journalists and tech companies shouldn’t assume that means that the current DOJ can’t or won’t come after reporters’ electronic records.

For one thing, the DOJ’s guidelines aren’t enforceable in court, and the DOJ already didn’t follow parts of the old version of its internal rules when it demanded records of the Times, Post, and CNN reporters. The current DOJ could simply ignore the guidelines or repeal them.

The DOJ could also abuse an exception in the guidelines that allows the government to seek legal demands for a journalist’s records when the journalist is “not acting within the scope of newsgathering” and is the subject of an investigation and suspected of committing an offense.

When applied correctly, this exception is extremely narrow. But there’s every reason to believe that Trump’s DOJ would stretch the exception beyond recognition to go after reporters’ records. After all, Trump has declared that engaging in journalism is itself a crime, claiming in a recent speech at the DOJ that what the media does is illegal because it writes bad things about him.

Tech companies must stand up for journalists

All of this means that tech companies must be ready to fight back against legal demands from the DOJ seeking records of journalists who are their customers and oppose gag orders preventing them from telling journalists about the demands. But will they?

We hope the answer is yes, but we fear otherwise. Chief executives from Meta, Amazon, Google, and, of course, X, are cozying up to Trump and trying anything they can to curry favor with him. At least some of them may decide that it’s better to just quietly comply with DOJ demands for journalists’ records rather than fight back.

But we’d love to be proven wrong, and there’s an easy way to start. Tech companies should declare now that they’ll oppose all legal demands for journalists’ electronic communications records in court and fight gag orders barring them from telling reporters and news outlets when their records are being sought. If the DOJ knows that these companies will aggressively fight back, it may think twice about using them to surveil journalists in secret.

Better yet, if companies don’t want to be put in the position of having journalists’ or others’ data to turn over in the first place, they should expand end-to-end encryption and collect and store as little information as possible about all users’ communications. That may mean less data for them to mine for profit. But the benefits for privacy and freedom would be priceless.