What the DOJ’s new guidelines mean for journalists

The U.S. Department of Justice’s new revised guidelines tightening government access to journalists’ records officially take effect this week. Yet the protections are not absolute, leaving some important exceptions in the hands of the Justice Department and Attorney General Eric Holder to circumvent the safeguards, particularly when it comes to classified information deemed potentially harmful.

The guidelines specifically aim to shield journalists from “certain law enforcement tools,” the department noted, including subpoenas, court orders and search warrants that “might unreasonably impair ordinary newsgathering activities.”

Signed by Holder on Friday, the changes in policy emphasize an approach that according to officials will “strike the proper balance” between:

  • The journalistic interest in “safeguarding the essential role of the free press in fostering government accountability and an open society,” and
  • The government interest in protecting national security, ensuring public safety and promoting effective law enforcement and the fair administration of justice.

If the policy changes live up to their promise of more protection for journalists, they could correct the current perceived imbalance between press freedoms and government power.

Why did the Justice Department change its rules?

President Obama asked Holder to review the DOJ’s policies following public criticism of officials’ invasive collection of AP telephone records and their secret use of a search warrant to obtain emails from Fox News. Holder then met with news media leaders as part of a “comprehensive evaluation” of department practices and policies on how the DOJ obtains journalists’ records. The meetings, which some media leaders boycotted because they were off the record, resulted in a six-page report issued last July.

The report served as a foundation for the latest guidelines.

How the new rules could help journalists

The DOJ emphasizes that it will use law enforcement tools to seek information from journalists only in “extraordinary measures,” rather than as part of standard investigatory practices.

Unless the attorney general or another senior official in the department has authorized it (or an exception exists), a Justice official must provide notice before issuing a warrant or subpoena for a journalist’s records.

The guidelines attempt to “strengthen the presumption” that DOJ attorneys will work with and provide journalists with advance notice when investigators seek to obtain the records related to the “scope of ordinary newsgathering,” which include third-party “communication records” and “business records.”

However, no advanced notice is required to obtain business records unrelated to ordinary newsgathering activities. Also, members of the Justice Department may apply for a search warrant if the journalist is the focus of a criminal investigation outside the scope of ordinary newsgathering.

Policy limits requests to essential information

The policy changes provide for additional considerations when seeking records from journalists. For example, requests are limited to those that provide essential information. According to the rules, a supoena “should not be used to obtain peripheral, non-essential or speculative information.” Rather, the following conditions apply:

  • To determine if information is essential in a criminal case, there should be “reasonable grounds” that a crime has occurred, and that the information requested is essential to a successful investigation or prosecution.

  • If it is a civil matter, a journalist can be subpoenaed when there are reasonable grounds that the journalist’s information would be “essential” to the successful completion of the investigation or when it it involves “litigation in a case of substantial importance.”

Also, before seeking a journalist’s records, the government “should have made all reasonable attempts to obtain the information it is seeking from alternative, non-media sources.”

Emphasis on narrowly-drawn requests

According to the guidelines, proposed subpoenas or court orders should be tailored to specific information that:

  • Is material and relevant.
  • Focuses on a limited subject matter.
  • Covers a reasonably limited time.
  • Avoids requiring the production of a large volume of material.
This minimizes the potential for fishing expeditions or overly burdensome requests.

Minimize Intrusion

The policy revisions provide that, when appropriate, investigators should follow search protocols that minimize intrusion into the newsgathering process or reduce the likelihood of revealing potentially protected materials by using:

  • Keyword searches (if electronic), or
  • Search teams that are separate from the prosecution or investigative teams.
While helpful, the caveat that these search protocols are to be used “when appropriate” is one example of how the guidelines allows the DOJ to step over the protections.

Exceptions to the rule

The guidelines permit the attorney general to issue subpoenas for journalists’ records without notice and leave room for interpretations that could infringe on press freedoms.

No notice required when risk of harm is present

The attorney general is not required to provide a news organization with notice when it would:
  • Pose a clear and substantial threat to the integrity of an investigation.
  • Risk grave harm to national security.
  • Present an imminent risk of death or serious bodily harm.
This broad exception represents the most likely avenue the government would use to circumvent the protections laid out for news organizations.

Requests concerning classified leaks

The attorney general may also authorize a subpoena without notice when the director of national intelligence has certified:

  • Significant harm could result from the unauthorized leak of classified information, and
  • The information was properly classified.

Increase public attention

Even if the revised guidelines do not live up to their intended promises, the acts that inspired them have now caught the attention of the media — and the public. This means many will be keeping a close eye on whether the government in fact changes its practices in obtaining journalists’ records or has created sufficient loopholes to carry on its investigations with impunity.

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