From the New York Times:
BACK in 2006, before the Obama administration made leak prosecutions routine, a panel of three federal appeals court judges in New York struggled to decide whether a prosecutor should be allowed to see the phone records of two New York Times reporters, Judith Miller and Philip Shenon, in an effort to determine their sources for articles about Islamic charities.
“I’ve been thinking about the scene in ‘All the President’s Men,’ ” said Judge Robert D. Sack, citing the leading cinematic precedent. He meant the part where Bob Woodward, in the process of unraveling the Watergate scandal for The Washington Post, meets his source in an underground parking garage.
“First of all,” Judge Sack asked, “do you really have to meet in a garage to maintain your confidentiality? Second of all, can the government go and subpoena the surveillance camera?”
Six years and six prosecutions later, those questions seem as naïve as their answers are obvious: yes and yes.
It used to be that journalists had a sporting chance of protecting their sources. The best and sometimes only way to identify a leaker was to pressure the reporter or news organization that received the leak, but even subpoenas tended to be resisted. Today, advances in surveillance technology allow the government to keep a perpetual eye on those with security clearances, and give prosecutors the ability to punish officials for disclosing secrets without provoking a clash with the press.
The changes have unsettled a decades-long accommodation between national security and press freedom, one in which the government did what it could to protect its secrets but exercised discretion in resorting to subpoenas and criminal charges when it failed. Even the administration of George W. Bush, no friend of leaks, more or less stuck to this script.
“The government does not pursue every leak,” said Mark Corallo, who served as the Justice Department’s spokesman in Mr. Bush’s administration. “On balance, it is more important that the media have the ability to report. It’s important to our democracy.”