Yesterday, the Associated Press reported that phone records from nearly two dozen phone lines were obtained by the Department of Justice as part of what was likely an investigation into how AP reporters discovered the CIA’s involvement in foiling an Al Qaeda related bomb plot. As Hayes Brown explained yesterday, this investigation probably was motivated by concerns that reporting on CIA’s involvement could have compromised an intelligence operative working within Al Qaeda in the Arabian Peninsula.

Lawmakers on both sides of the aisle have expressed concerns over DOJ’s actions here, potentially providing a rare opportunity to enact law restricting government surveillance. Moreover, there are strong arguments for why DOJ should be required to obtain a warrant from a judge before obtaining journalists’ phone records, especially in a case such as this one where DOJ’s need for the information does not appear to be imminent, the information sought is particularly broad, and the records are likely to remain available even after a delay.

Yet, if change is going to happen, it will likely have to come from what is currently the most dysfunctional branch of government — Congress — rather than the one that is currently most capable of bold action — the judiciary. Ultimately, this incident is likely to be a test of whether Congressional Democrats who opposed expansive surveillance during the Bush Administration will also have qualms with DOJ’s actions now that one of their own is in the White House; and whether Republicans, many of whom had a very different view of media surveillance just a year ago, will be able to pause their political posturing to pass a law preventing similar incidents from occurring in the future.

While the full details of the investigation have not been revealed — AP’s reporting on the surveillance was based largely on a letter DOJ sent to AP informing them of the surveillance — it is unlikely that DOJ’s actions violate the Constitution as it has been interpreted by the Supreme Court. No evidence has emerged that DOJ obtained the contents of actual conversations by AP reporters. Rather, their investigation appears to be limited to discovering which numbers were dialed by AP employees subject to surveillance, and possibly a similar investigation of their incoming calls.

Under the Supreme Court’s 1979 decision in Smith v. Maryland, the Constitution’s ban on unreasonable searches and seizures simply do not apply to this kind of surveillance. According to the five justices who joined the majority opinion, individuals do not have a “reasonable expectation of privacy” in the numbers they dial on their phones because “[t]elephone users . . . typically know that they must convey numerical information to the phone company; that the phone company has facilities for recording this information; and that the phone company does in fact record this information for a variety of legitimate business purposes.” When information is voluntarily disclosed to a third party, the Court explained the person disclosing the information “assumed the risk that the information would be divulged to police.”

The best argument for applying a different rule to the AP is that journalists are different from other phone users. Journalists often depend on sources who will refuse to speak to a reporter if their conversation is not kept confidential. If government can discover who reporters have been speaking to, they will chill sources from providing information to journalists, and the public will ultimately be less well informed about the information they need to participate in a democracy. Most significantly, the First Amendment explicitly protects “the freedom of. . . the press,” so a strong textual argument can be made that activities that are essential to journalism enjoy heightened protection under the Constitution.

This argument, however, is unlikely to be embraced by our current Supreme Court. In Citizens United, the conservative justices did not just authorize corporations to spend unlimited money to influence elections, they also dismissed the idea that “the institutional press has any constitutional privilege beyond that of other speakers.” At least until one of these five justices leaves the bench, a robust interpretation of the First Amendment’s freedom of the press is unlikely.

The Constitution isn’t the beginning and the end of American law, and Justice Department regulations do place some significant restrictions on federal law enforcement’s ability to subpoena telephone records from journalists. Beyond requiring the surveillance of AP to eventually be disclosed to AP, they also typically require actions targeting journalists to be personally approved by the Attorney General. What they do not require, however, is for DOJ investigators to obtain a warrant before they conduct the surveillance at issue here. Placing this decision in the hands of the Attorney General is not nothing — the sheer volume of Eric Holder’s workload prevents him from personally reviewing and approving very many things — but it is also not an independent check on DOJ’s ability to target journalists.

At the moment, there appear to be a bipartisan consensus forming that the current checks on DOJ surveillance are not enough — at least in the media context. The question is whether Congress will actually decide to do something about it, or whether they will default to partisan posturing and reliance on a Supreme Court that shows little interest in protecting journalism.