From the Fall 2004 issue of The News Media & The Law, page 5.
A plan to revise some aspects of the Department of Justice guidelines regarding subpoenas of journalists would move e-mail and other materials into the category of information that could be subpoenaed only in rare, last-ditch instances.
The effort arose out of the September 2002 seizure by government agents of a Federal Express package sent from Associated Press reporter Jim Gomez in Manila to AP reporter John Solomon in Washington, D.C. U.S. Customs Service agents forwarded the package to the FBI after seeing that it contained a 1995 FBI report.
The reporters were not notified of the seizure, but learned of it via a tip in January 2003. Federal Express had claimed that it was accidentally lost. The FBI report was unclassified and had previously been disclosed to the public in court documents.
During communications about the seizure, FBI representatives invited AP attorney David Schulz to propose revisions of the Department of Justice’s guidelines regarding subpoenas of journalists and their working materials. A number of media organizations — including The Reporters Committee for Freedom of the Press — were asked to join in drafting proposed revisions.
According to comments submitted to the FBI with the proposed revisions, the changes “are intended to clarify that the policy applies to requests for all forms of communications with reporters, including e-mail communications, and ‘business records’ such as credit card bills, airline tickets and hotel receipts, when sought to disclose a reporter’s activities and contacts with sources.”
The changes clarify that the guidelines should apply whenever law enforcement methods “are being used to obtain either sources’ identities or information gained through the newsgathering process,” the comments state.
The revisions, submitted to the FBI on June 10, are being reviewed by FBI officials. — GP