Back in December 2020, a U.S. Immigration and Customs Enforcement agent issued a subpoena to BuzzFeed News demanding it identify its sources for a story about the Trump administration’s fast-track deportation program. ICE backed off after BuzzFeed resisted and wrote about the demand.
Congress, however, noticed that ICE did not have an internal policy akin to the news media guidelines at the U.S. Department of Justice, which create administrative checks to prevent improper demands for records from journalists or their phone or email providers. In the 2022 spending bill for the U.S. Department of Homeland Security, Congress directed ICE to implement a policy “analogous” to DOJ’s, which it released last month.
I wrote at length about the pros and cons of the ICE policy in Lawfare, but it’s worth emphasizing one pro and two cons here.
On the positive side, at least there’s now a policy. For years, media lawyers have been concerned about both how vast Homeland Security’s investigative and enforcement powers actually are, and that the lack of a policy could lead to overreach (like “Operation Whistle Pig,” where agents at U.S. Customs and Border Protection used counter-terrorism tools to investigate reporters in an effort to get them to write about forced labor). And the ICE policy includes the three main elements of the DOJ policy: high-level approval, requirements that investigators pursue non-media sources first and advance notice to the affected member of the news media.
But that leads to the first negative — right now, that’s not enough to be “analogous” to the DOJ policy. That’s because in July 2021 Attorney General Merrick Garland issued a memorandum that profoundly amended the DOJ news media guidelines. In a historic move, Garland prohibited members of the department from seeking records from, or of, journalists with only narrow exceptions. The Garland memorandum supplanted the previous approach, where the department would weigh its investigative interests against press rights. The DOJ now has a bright-line rule — no “compulsory process” against journalists unless, for instance, they’re acting as foreign agents or suspected of ordinary criminal activity like insider trading. As I describe in greater detail in the Lawfare piece, the ICE policy is far from that.
And, as to the second negative, the policy only applies to ICE. DHS is a sprawling agency. It includes CBP, the largest law enforcement agency in the country and one of the largest in the world. It includes the Secret Service, which, while famous for running alongside presidential limousines, is a full-fledged investigative agency originally formed to combat counterfeiting. And it has an intelligence arm that was criticized in 2020 for creating “dossiers” on journalists who had published leaked documents. (That said, the policy does cover Homeland Security Investigations, which is like DHS’s internal FBI. That’s very positive.)
As I mentioned in the Lawfare piece, the Reporters Committee helps coordinate the News Media Dialogue Group at the Justice Department, which includes representatives of the news media and senior DOJ officials and advises on the news media guidelines. We stand ready to serve a similar function at DHS, and hope that we someday can.
The Technology and Press Freedom Project at the Reporters Committee for Freedom of the Press uses integrated advocacy — combining the law, policy analysis, and public education — to defend and promote press rights on issues at the intersection of technology and press freedom, such as reporter-source confidentiality protections, electronic surveillance law and policy, and content regulation online and in other media. TPFP is directed by Reporters Committee attorney Gabe Rottman. He works with Stanton Foundation National Security/Free Press Legal Fellow Grayson Clary and Technology and Press Freedom Project Legal Fellow Gillian Vernick.