The Department of Justice has released its long-anticipated updated policy on obtaining information from the news media. The guidelines require, among many other things, that department officials — which includes U.S. attorneys and FBI agents — must try to negotiate with the media and then give notice before issuing a subpoena, must narrowly draw the subpoena for essential information, and, maybe most importantly, must obtain the approval of the Attorney General before issuing a subpoena.
The new guidelines are by no means perfect, but they do give additional protections to the news media. Most notably, media parties should be more likely to receive notification before their records are subpoenaed from third parties. The old guidelines allow for such notice only if the department is sure it would not compromise an investigation; the new rules say notice should be given except in rare circumstances.
And U.S. Attorneys should be much less likely under these new guidelines to try to get records from journalists by treating them as an aider, abettor or co-conspirator to the act of obtaining confidential government documents. The department did just that in the leaks investigation of Stephen Kim, who accepted a plea deal over the information related to North Korea that he released to a Fox News reporter. To obtain a search warrant for the Gmail account of the reporter, James Rosen, an FBI agent alleged that Rosen was indeed involved in the crime related to Kim's release of the information.
On the other hand, the guidelines do have weaknesses, including a fairly broad national security exception and mentions throughout to protections for "ordinary" newsgathering activities. That could work out just fine, but will every FBI agent and U.S. Attorney have their own definition of what is and is not "ordinary"? Minor changes throughout the policy suffer from the same concern — if you read them favorably, they serve journalists well, but if you read them with negative assumptions in mind, you start to wonder if a protective measure is really a hidden trap.
In any case, the guidelines have never been enforceable in court, so they do not give journalists any real protection from subpoenas. That has to come from courts, and the authority for court protection has to come from a federal shield law. The greatest benefit of the guidelines is, and has always been, that a subpoena against the news media must be carefully thought out by federal prosecutors. No prosecutor wants to risk having a subpoena rejected by the bosses in Washington. The extra hurdles to issuing a subpoena that the guidelines create may have stopped a number of subpoenas before they were ever served — we'll never really know.
The revisions have been in the works since this past May, following the protests caused by the department's massive sweep-up of Associated Press phone records in its search for the organization's source of a story about a foiled terror plot in Yemen.
The AP controversy not only led to changes in the department's internal policies, but spurred the White House and Attorney General Eric Holder to commit to support a federal reporter's shield law. A bill creating such a law has passed the Senate Judiciary Committee, and is expected to reach the Senate floor for a vote soon.
Ultimately, it is only the shield law that can create legally enforceable standards in court for subpoenaing journalists. We hope Congress and the President live up to their obligations to provide this protection this year.