An appeals court on Tuesday overturned a judge's ruling that had protected New York Times phone records from being inspected by federal prosecutors investigating leaked information about a terrorism fundraising probe.
By a 2-1 vote, a three-judge panel of the 2nd U.S. Circuit Court of Appeals held that prosecutors had a valid interest in seeing who contacted Times reporters.
"We see no danger to a free press in so holding," Judge Ralph K. Winter wrote for the majority.
The case involved stories written in 2001 by Times reporters Judith Miller and Philip Shenon that revealed that the government planned to freeze the assets of the Global Relief Foundation, an Islamic charity accused of funding terrorism, as well as those of another Islamic charity, the Holy Land Foundation.
U.S. Attorney Patrick Fitzgerald then opened a grand jury probe into the source of the newspaper reports, claiming the reporters' phone calls to the charities seeking comment had tipped them off about the investigation.
When the paper declined to identify its sources, Fitzgerald threatened to subpoena Times billing records from the phone company. The newspaper then filed a lawsuit seeking to block any such effort.
In February 2005, the newspaper appeared to achieve a victory when U.S. District Judge Robert Sweet ruled that the government had failed to prove that it had exhausted all other methods before resorting to the demand for phone records.
The 2nd Circuit panel disagreed.
"No grand jury can make an informed decision to pursue the investigation further, much less to indict or not indict, without the reporters' evidence," Winter wrote.
He said he did not believe the decision would harm journalism.
"Learning of imminent law enforcement asset freezes/searches and informing targets of them is not an activity essential, or even common, to 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."