A lot of people have responded to criticism over the NSA spy program saying, "so what if they want to look at my phone records, I don't do anything wrong." Well, a reporter can be doing nothing wrong but still get spied on so the FBI can identify their confidential sources. Turns out ABC has a little spy problem, and their phones have been illegally compromised by the feds who clearly don't know about the tasty first-amendment protections at play.

Kos has some good analysis on how this relates to established case law on protections for journalists that suggests this is the most illegal thing yet.

In New York Times Co. v. Gonzales, 382 F.Supp.2d 457 (S.D.N.Y. 2005), the New York Times sought a declaratory judgment to protect the telephone records of two of its reporters, Judith Miller and Philip Shenon. Miller and Shenon had written articles in the aftermath of September 11th detailing how the government planned to block assets and search the offices of two Islamic charities.

Patrick Fitzgerald wanted to know who leaked this information. He argued that Miller and Shenon's reporting tipped off the charities to the searches and increased the likelihood that evidence and assets were destroyed or concealed. As part of his investigation into the leak, he requested that Miller and Shenon voluntarily produce their phone records. They refused and eventually filed the lawsuit to determine whether their phone records were protected.

Judge Sweet ruled that indeed the phone records in that case were "protected by the qualified reporters' privilege for confidential sources, which exists pursuant to the First Amendment and federal common law." The government in that case was unable to overcome that privilege, so it could not have access to the phone records.

**update**
Maybe Hayden was trying to find out about this guy ABC was talking to.

NSA whistleblower Russ Tice says he will tell Congress Wednesday of "probable unlawful and unconstitutional acts" involving the agency's former director, Gen. Michael Hayden, President Bush's nominee to run the CIA.

Tice, a former technical intelligence specialist at NSA who first went public on ABC News, says he has been asked to meet in closed session with staff members of the Senate Armed Services Committee.

In a letter to the committee, Tice says the alleged illegal acts involved "very highly sensitive intelligence programs and operations known as Special Access Programs (SAPs)."