"Learning of imminent law enforcement... and informing targets of them is not an activity essential, or even common, to journalism."

So wrote Second Circuit Judge Ralph Winter, rejecting claims of privilege and granting federal prosecutors access to the phone records of two NYT reporters.

The case arose from a Chicago grand jury’s investigation into who told the two reporters, Judith Miller and Philip Shenon, about actions the government was planning to take against two Islamic charities, Holy Land Foundation in Texas and Global Relief Foundation in Illinois. Though the government contended that calls from the reporters tipped off the charities to impending raids and asset seizures, the investigation appears to be focused on identifying the reporters’ sources. No testimony has been sought from the reporters, and there has been no indication that their actions are a subject of the investigation.

The NYT argued that the reporters “were conducting their journalistic duties by getting reaction to an ongoing story.” It would seem that this could always be said in the case where a reporter's inquiry tips off a target of law enforcement.