The year 2001 involved more turmoil and dramatic change than any other year in recent history. The events of September 11 shocked the nation and spurred the federal government to take action to punish terrorists, protect the country and compensate for losses. The attacks prompted federal investigations and litigation that will remain active for years to come.

Yet, surprisingly to some media attorneys, the number of subpoenas to news organizations has not increased in any significant manner since September 11, according to Reporters Committee sources. A year and a half after the attacks, anecdotal evidence showed that media organizations had not received a large number of terrorism-related subpoenas from the federal government since September 11.

One reason for the lack of change may be that news organizations were more willing after Sept. 11 to hand over information to authorities without being subpoenaed. Whether news media organizations are offering tape and other unpublished materials to government is difficult to determine because they apparently are doing so only behind closed doors.

A report released by the Department of Justice in December 2001 said the agency authorized 88 subpoenas of the news media between 1991 and Sept. 6, 2001. Of those subpoenas, 17 sought information that could identify a reporter's source or source material. And in eight of the cases — five involving subpoenas for reporters' phone records and three involving requests for documents or testimony — the department said it did not negotiate with reporters before issuing the subpoena because negotiations would have threatened a criminal investigation.

The department listed 33 instances of trial subpoenas served on broadcast and print reporters from news outlets. Most of those subpoenas sought aired videotapes of interviews with criminal defendants or print reporters' testimony to verify the contents of published interviews. Other subpoenas sought reporters' notes.

The figures for the year 2002 have yet to be released. Thus, any change in the number of federal subpoenas to news organizations since Sept. 11, 2001, has not been documented.

Journalists facing subpoenas from federal sources should be aware of internal regulations within the Justice Department known as the "Attorney General Guidelines on Subpoenaing the News Media." The rules, designed to balance the public's interest in a free flow of information with the interest in effective law enforcement, spell out procedures the department must follow when it subpoenas a member of the news media.

Before a federal prosecutor may issue a subpoena to a reporter, the Justice Department regulations require that "[a]ll reasonable attempts should be made to obtain information from alternative sources."

The regulations also require that prosecutors negotiate with the media. No subpoena may issue without authorization from the Attorney General, unless the material sought has already been published, and the news organization has consented to disclosure.

In addition, Justice attorneys can only subpoena information that is "essential" to a case. "The subpoena should not be used to obtain peripheral, nonessential, or speculative information," under the rules.

The guidelines in place at Justice also limit the use of subpoenas to get at a reporter's telephone records. The provisions concerning phone records are rigorous: the department must have grounds to believe a crime has been committed, the information sought must be essential, and the reporter must be given timely notice of the Attorney General's authorization of the subpoena.

While the Attorney General's guidelines do not have the force of law, experience has shown that they are respected and followed by department attorneys. In May 2002, for example, federal prosecutors in Manhattan withdrew a subpoena to MSNBC after they realized they had not obtained authorization from the Attorney General.

Nevertheless, Attorney General John Ashcroft has shown little commitment to enforcement of the subpoena guidelines. Journalists should take it upon themselves to insist that federal investigators and prosecutors attempting to subpoena the news media follow the procedures laid out in the guidelines.