Monday, May 15, 2006

Better Get Some New Cellphones

That's the admonition of an "unnamed" government official (surprise, suprise) to ABC investigative journalist Brian Ross. The source tells Ross that the government is tracking phone calls made by reporters, in an effort to root out unauthorized leaks within the government. According to Ross, he does not know how the government determined who he calls, or whether his phone records (or those of other journalists) were provided by phone companies, as part of the recently-disclosed NSA data-mining effort.

The MSM will scream long and loud about this one, but let's keep things in perspective. Under existing federal statutes, intelligence officials who divulge sensitive information to the press are likely in violation of the law. The unauthorized leak of such data results in a referral from the intelligence agency to the Justice Department, which launches a criminal probe. Federal prosecutors then have the right to gather and subpoena evidence in support of that effort, including phone records. If authorities discover a series of calls between the office phone or cell phone of an intelligence officer and Brian Ross of ABC News, well, that could certainly be relevant in identifying and prosecuting leakers.

I'm not a lawyer, but at first blush, there doesn't appear to be anything illegal about this practice, particularly if the acquisition of records followed a criminal referral to the Justice Department. The media is anxious to connect the warning to Ross as part of the NSA program, but I'm guessing that the records in question are, indeed, the result of justice department investigations into unauthorized leaks. That would indicate that the investigation is moving along quickly, and indictments of suspected leakers can be expected in the coming months. As for Mr. Ross (and other journalists), they might want to prepare for a grand jury appearance. I'm sure that federal prosecutors have lots of questions about those calls to their buddies in the intelligence community.

P.S.--Given the government's apparent interest in Mr. Ross's phone records, there's a certain irony in the photograph that accompanies his postings at "The Blotter. I'm sure that some our Photoshop artists in the blogosphere will have a lot of fun with Mr. Ross and his cellphone. When you post them, send me a link.

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