Reported efforts to out journalists’ sources show need for PRESS Act

Seth Stern

Director of Advocacy

A 2018 ICE summons demanded a law journal editor disclose the source of a leaked memo on Trump administration asylum policies. New reporting reveals other similar summonses to journalists.

Last year the Department of Justice enacted regulations restricting prosecutors from prying into journalists’ newsgathering. It was certainly a welcome development. But it seems like every week news breaks that underscores the need for a more widespread and permanent solution to the unfortunate tendency of public officials to abuse their offices to spy on journalists.

That solution is the PRESS Act — a bipartisan federal “shield” bill that almost became law last year and will likely soon be reintroduced in this Congress. It would prohibit the government from spying on journalists or threatening them with prison if they don’t burn their sources. In turn, it would allow sources wishing to expose malfeasance or bring other important news to light to do so without fearing for their livelihood or even their freedom.

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The only exceptions to the PRESS Act’s proscription on surveilling “covered journalists” (which is broadly defined) are for imminent national security emergencies. The act would have far more permanence than the current agency rule, which a President Trump or DeSantis would almost certainly repeal. And it would extend across the federal government — not just to the DOJ. The following examples are just the latest incidents demonstrating the need to pass the act:

Congressional harassment of journalists

Last week Rep. Stacey Plaskett sent a letter to journalist Matt Taibbi demanding that he supplement prior Congressional testimony by answering questions about his newsgathering and discussions with his alleged source, Elon Musk. The letter then baselessly implies that Taibbi could be imprisoned for perjury should he not supplement his testimony. It’s the most recent of several attempts by the government to pry into Taibbi’s newsgathering.

At issue in the letter was Taibbi’s testimony around his reporting on the Twitter Files — internal Twitter documents that Taibbi and others contend evidence improper collaboration between government officials and Twitter to censor disfavored views. Sure, there are plenty of opinions on Taibbi’s reporting and whether the Twitter Files were as significant as he claims. Journalist communications that interest politicians tend to involve controversial stories and the First Amendment doesn’t limit its reach to exemplary reporting.

But does Rep. Plaskett — or anyone — believe Taibbi’s responses to her questions would stop an imminent terrorist attack or national security emergency? Of course not. Her (and other Democrats’) interest is in countering the politically damaging narrative arising from Taibbi’s reporting, a focus of the House Subcommittee on Weaponization of the Federal Government.

The PRESS Act rightly recognizes that politicians’ desires to defend their reputations, even against unfair attacks, do not justify intrusion into newsgathering. It would have stopped not only Plaskett’s questioning of Taibbi but a host of other examples of politicians from both parties harassing journalists whose sources cause them political headaches.

Administrative subpoenas demand journalists’ sources

Another recent news story by Wired revealed the extent of U.S. Immigration and Customs Enforcement’s use of a little-known legal tool, known as a 1509 summons, to improperly surveil journalists and others. The summons essentially function as subpoenas, but without judicial oversight. They’re only supposed to be used in investigations of customs violations, but numerous experts and insiders contacted by Wired say they’re frequently abused.

ICE’s use of 1509 summonses to target journalists and their sources is not news. Freedom of the Press Foundation’s U.S. Press Freedom Tracker reported in 2018 on one such summons issued to a law journal editor who published a leaked memo detailing the Trump administration’s decision to restrict asylum for victims of domestic and gang violence. The summons’ demands included “contact information of the source of the document.” In 2020, the Tracker reported another ICE summons seeking sources and more in connection with a BuzzFeed story about Trump’s expansion of fast-track deportations.

But the Wired story revealed just how widespread ICE’s abuse of the summons process may be. Wired turned up records of two more summonses issued to newspapers — the Bangor Daily News and Seattle Times — although neither paper confirmed receiving the summonses. It also found summonses targeting everyone from kids’ sports leagues to abortion providers to schools to boards of elections. PRESS Act co-sponsor Sen. Ron Wyden is well aware of the problem — his own investigation into 1509 summonses showed that ICE shared records of financial transfers with hundreds of law enforcement agencies nationwide.

It goes to show that federal prosecutors are far from the only ones looking to peer into newsrooms. But the PRESS Act would eliminate the need for agency-by-agency whack-a-mole which, even if successful, may be nullified by future administrations. The act has broad bipartisan support and should be brought to a vote as soon as possible once it’s reintroduced.

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