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Published on Tuesday, August 12, 2008 by The New York Times

FBI's Use of Phone Records Shows Need to Protect the Press, Senators Say

by Eric Lichtblau

WASHINGTON - Two leading senators said Monday that they were troubled by the F.B.I.'s collection of the phone records of four reporters at The New York Times and The Washington Post and that the episode showed a "pressing need" for legislation pending in the Senate that would provide greater legal protection for journalists.

Last week, the Federal Bureau of Investigation disclosed to the two newspapers that it had improperly obtained the phone records of reporters in their Indonesian bureaus in 2004 by using emergency records demands from telephone providers as part of an investigation. Robert S. Mueller III, the director of the bureau, made personal calls to Bill Keller, executive editor of The Times, and Leonard Downie Jr., executive editor of The Post, to apologize.

But the ranking senators on the Judiciary Committee, Patrick J. Leahy, Democrat of Vermont, and Arlen Specter, Republican of Pennsylvania, said that was not enough.

In a letter sent to Mr. Mueller on Monday, the two senators said they wanted formal staff briefings on the episode to address unanswered questions.

The phone records were apparently obtained as part of a terrorism investigation, but the agency has not explained what it was investigating or why the reporters' phone records were considered relevant.

In a letter sent to Mr. Keller last week, Valerie Caproni, general counsel for the bureau, said the telephone records, which show the numbers called but not the calls' content, had been purged from the F.B.I.'s databases. She also said the information obtained was not used in any investigation.

Because of free-press concerns, Justice Department policy requires that the F.B.I. get approval from the deputy attorney general before obtaining reporters' phone records in an investigation. That was not done in this case. The episode was discovered as part of a continuing investigation by the Justice Department inspector general into the F.B.I.'s misuse of records demands.

Mr. Leahy and Mr. Specter said the episode and the inspector general's broader findings on the agency's misuse of the demands "create a troubling impression of deliberate wrongdoing or serious negligence at the F.B.I."

The two senators told Mr. Mueller that the latest episode bolstered the need for a federal shield law for reporters that would protect sources and news-gathering methods. A bill sponsored by Mr. Leahy and Mr. Specter would limit the government's ability to collect a reporter's phone records and, in most cases, require a court to weigh the need for such material.

The Bush administration has vigorously opposed the shield law, saying it would compromise national security investigations. The bill passed the House overwhelmingly last year, but it stalled in the Senate last month after Republicans succeeded in blocking a vote. Senate Democrats still hope to bring the bill to a vote in September.

F.B.I. officials said that the type of emergency records demand used in the 2004 Indonesian episode was no longer allowed and that the bureau was cooperating with the inspector general in its investigation.

© 2008 The New York Times

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