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Strengthening and preserving the attorney general guidelines for media subpoenas

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  1. Protecting Sources and Materials

Since 2013, the Reporters Committee for Freedom of the Press has led a group of media organizations — known as the News Media Dialogue Group — in working with the Department of Justice to strengthen and preserve the federal guidelines that protect journalists and news outlets from being forced to disclose their confidential sources or other newsgathering records in the course of leaks probes or other federal investigations.

The guidelines, created by the attorney general, have been part of the Code of Federal Regulations since the 1970s and detail how and under what circumstances federal prosecutors can issue subpoenas, court orders or search warrants for journalists’ testimony, work product or other records. They are intended to balance national security interests with protections for a free press by requiring that federal prosecutors only use these legal tools as a last resort in investigations — meaning only when the information sought is essential to an investigation and prosecutors have exhausted all other possible sources for it.

The guidelines were significantly modified in 2014 in response to outcry from the press and public after it was revealed that the DOJ, in the course of leaks investigations, had secretly seized records for more than 20 Associated Press telephone lines and used a warrant to obtain Fox News journalist James Rosen’s emails. In the summer of 2013, then-Attorney General Eric Holder invited interested groups to comment on and suggest changes to the guidelines. The Reporters Committee rallied a coalition of more than 50 media companies and journalism organizations to propose revisions that would strengthen protections for journalists.

The DOJ released updated guidelines in February 2014 that addressed many of the News Media Dialogue Group’s proposed changes, including expanding the categories of newsgathering records that fall under the guidelines. The revisions also included new requirements that the attorney general approve the use of law enforcement tools targeting journalists and the DOJ provide advance notice to journalists or news organizations prior to seizing their records from a third party (unless such notification would pose a “substantial threat” to the investigation). The DOJ further modified the guidelines in January 2015 in response to additional concerns raised by the News Media Dialogue Group.

The News Media Dialogue Group’s work continues today in the wake of then-Attorney General Jeff Sessions’ August 2017 announcement that the DOJ would revisit the guidelines as part of its intent to pursue more leak investigations. Below are key letters, statements, press releases and reports issued since 2013 related to the guidelines.

2013

 

  • 5/21/13 Statement from Reporters Committee’s Bruce Brown on Justice Department investigations of journalists
    Reporters Committee Executive Director Bruce Brown issued a statement condemning the DOJ’s execution of a search warrant for email communications between Fox News reporter James Rosen and a confidential source. “The Justice Department’s decision to treat routine newsgathering efforts as evidence of criminality is extremely troubling and corrodes time-honored understandings between the public and the government about the role of the free press,” said Brown.
  • 6/19/13 Reporters Committee News: AP chief points to chilling effect after Justice investigation
    One month after the DOJ’s seizure of AP phone records was made public, AP President and CEO Gary Pruitt noted in a speech at the National Press Club that it had caused longtime, trusted sources to become nervous about speaking to AP reporters. “I can tell you that this chilling effect is not just at AP,” said Pruitt. “Journalists at other news organizations have personally told me it has intimidated sources from speaking to them.”
  • 6/21/13 Letter to the attorney general proposing changes to the guidelines
    In a letter, the Reporters Committee detailed the media coalition’s proposed changes to the guidelines, including adding a requirement that the DOJ provide advance notice to journalists and news organizations before obtaining their records from a third party; revising the scope of the guidelines to cover all newsgathering-related records stored with third parties and all types of legal tools used to demand such records; and instituting the public release of an annual report on the DOJ’s number of media-related demands and an annual meeting between journalists and DOJ officials.

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2014
2015

 

  • 1/14/15 Attorney General Memorandum: Updated policy regarding obtaining information from, or records of, members of the news media In a memorandum to department employees, Attorney General Holder explained some of the notable changes in another round of revisions to the guidelines. These include eliminating of the phrase “ordinary newsgathering activities” in an effort to protect all newsgathering activities from being subjected to subpoenas, court orders, or search warrants; and requiring prosecutors to consult the Policy and Statutory Enforcement Unit of the Criminal Division’s Office of Enforcement Operations before obtaining information from members of the news media.

 

  • 1/14/2015 DOJ Press Release: Attorney General Holder announces updates to Justice Department media guidelines
    In light of expanded revisions to the DOJ’s policy regarding media guidelines, the Office of the Attorney General posted a press release highlighting changes and affirming the need for balance between law enforcement interests and the free press. “This updated policy is in part the result of the good-faith dialogue the department has engaged in with news industry representatives over the last several months,” said Attorney General Holder. “These discussions have been very constructive and I am grateful to the members of the media who have worked with us throughout this process.”
2017
  • 1/9/17 Reporters Committee Report on Attorney General Nominee Jeff Sessions on Issues that Affect the News Media
    The Reporters Committee published a report detailing attorney general nominee Jeff Sessions’ positions on issues affecting journalists and media organizations. The report notes, among other things, that Sessions had opposed a federal reporter’s shield law  and previously supported surveillance policies that threaten confidential reporter-source relationships.
  • 5/16/17 Statement from the Reporters Committee: No president gets to jail journalists
    After The New York Times reported on the details of a memo written by former FBI Director James Comey that documented President Trump’s suggestion that Comey consider imprisoning reporters who publish classified information, Reporters Committee Executive Director Bruce Brown issued a statement calling the comments dangerous and affirming constitutional protections for a free press. “Reporters are protected by judges and juries, by a congress that relies on them to stay informed, and by a Justice Department that for decades has honored the role of a free press by spurning prosecutions of journalists for publishing leaks of classified information,” said Brown.
  • 8/4/17 Statement from the Reporters Committee: DOJ’s announcement on leaks is “deeply troubling”
    Following Attorney General Sessions’ announcement that the DOJ would increase its pursuit of leaks investigations and revisit the guidelines, Reporters Committee Chair David Boardman and Executive Director Bruce Brown issued statements that cautioned Sessions against weakening free press protections.
2018