That the Department undertook this unprecedented step without providing any notice to the AP, and without taking any steps to narrow the scope of its subpoenas to matters actually relevant to an ongoing investigation, is particularly troubling.
The sheer volume of records obtained, most of which can have no plausible connection to any ongoing investigation, indicates, at a minimum, that this effort did not comply with 28 C.F.R. §50.10 and should therefore never have been undertaken in the first place. The regulations require that, in all cases and without exception, a subpoena for a reporter's telephone toll records must be "as narrowly drawn as possible.'' This plainly did not happen.
We regard this action by the Department of Justice as a serious interference with AP's constitutional rights to gather and report the news. While we evaluate our options we urgently request that you immediately return to the AP the telephone toll records that the Department subpoenaed and destroy all copies. At a minimum, we request that you take steps to segregate these records and prohibit any reference to them pending further discussion and, if it proves necessary, guidance from appropriate judicial authorities. We also ask for an immediate explanation as to why this extraordinary action was taken, and a description of the steps the Department will take to mitigate its impact on AP and its reporters.
Given the gravity of this situation, I look forward to your prompt response.
Updated 05/13/13: This article has been updated to include reaction from the ACLU.