[JURIST] Federal prosecutors may review two New York Times reporters' phone records while trying to determine who leaked information about a terrorism investigation, the US Court of Appeals for the Second Circuit ruled Tuesday. A three-judge panel held [opinion text, PDF] that "on the present facts," neither common-law privilege nor the First Amendment protected the Times from disclosing the subpoenaed records. "We see no danger to a free press in so holding," Circuit Judge Ralph K. Winter [official profile] wrote in the majority opinion. Winter continued:
Learning of imminent law enforcement asset freezes/searches and informing targets of them is not an activity essential, or even common, journalism. Where such reporting involves the uncovering of government corruption or misconduct in the use of investigative powers, courts can easily find appropriate means of protecting the journalists involved and their sources.Circuit Judge Robert Sack [official profile] dissented [PDF text], noting that he agreed with much of the majority opinion but arguing that the case should have gone to trial for prosecutors to justify their need for the phone records. The Second Circuit vacated a February 2005 district court decision [PDF text; JURIST report] granting summary judgment to the Times.
US Attorney Patrick Fitzgerald [official profile] in Chicago requested the phone records after the Times reported in late 2001 that the federal government was about to raid the offices of two Islamic charities with suspected links to terrorism and freeze their assets. After the Times refused to disclose the records, Fitzgerald threatened to subpoena the phone company, leading the Times to file a lawsuit seeking a declaratory judgment blocking Fitzgerald from making that move. AP has more.