## Facts

- After the September 11, 2001 attacks, the federal government pursued investigations into suspected terrorist financing by U.S.-based organizations.
- The government planned to freeze assets and/or search the premises of two foundations: the Global Relief Foundation and the Holy Land Foundation.
- Two reporters for The New York Times learned of the planned actions and, on the eve of each operation, contacted each foundation for comment.
- The government believed the calls jeopardized agent safety and alerted targets, potentially reducing the effectiveness of the freezes and searches.
- A grand jury investigation began to determine who disclosed the government’s plans.
- The government sought cooperation from the Times and its reporters, including access to reporters’ telephone records, and indicated it would obtain those records from third-party telephone carriers.
- The Times filed a civil action seeking declaratory relief preventing enforcement or use of grand jury subpoenas directed to third-party carriers for reporters’ phone records.

## Issues

1. Whether a civil declaratory-judgment action was an appropriate vehicle to challenge anticipated grand jury subpoenas to third-party telephone carriers, given the availability of Rule 17(c)(2) motions to quash or modify subpoenas.
2. Whether the First Amendment or federal common law (under Federal Rule of Evidence 501) provides a reporter’s privilege that shields reporters’ telephone records held by third-party carriers from grand jury subpoenas.

## Decision

- The Second Circuit vacated the district court’s summary judgment for the Times and remanded.
- The court rejected the Times’s claim to a declaratory judgment categorically barring the government from obtaining reporters’ phone records from third-party carriers based on a reporter’s privilege.
- Applying Branzburg v. Hayes, the court treated any reporter’s privilege as qualified and held it did not defeat the government’s need in this leak investigation involving national-security and law-enforcement concerns.
- The court emphasized the distinction between compelling a reporter’s own testimony/production and obtaining records from a third-party provider.
- The court noted the relevance of existing procedural safeguards (including Rule 17(c)(2) judicial review mechanisms), but proceeded to the merits and denied the broad relief sought.

## Legal Principles

- The First Amendment does not create an absolute reporter’s privilege against participation in grand jury investigations; any protection is, at most, qualified.
- A qualified reporter’s privilege may yield where the government shows a strong need for the information in a legitimate criminal investigation, including investigations with national-security implications.
- Subpoenas directed to third-party service providers for reporters’ call records are not treated as the same form of compelled disclosure as subpoenas directed to reporters themselves, and may be less protected.
- Claims of a federal common-law reporter’s privilege under Federal Rule of Evidence 501 will not be extended to categorically block grand jury subpoenas where the government’s need is compelling and the information is central to the inquiry.
- Declaratory relief is not available to establish a blanket rule barring grand jury access to third-party phone records based on reporter’s privilege theories.

## Conclusion

The Second Circuit held that The New York Times was not entitled to a declaratory judgment preventing the government from using grand jury subpoenas to obtain reporters’ telephone records from third-party carriers, concluding that any qualified reporter’s privilege did not override the government’s demonstrated need in a national-security-related leak investigation.


N.Y. Times Co. v. Gonzales, 459 F.3d 160 (2d Cir. 2006)