What the DOJ’s New Guidelines Mean for Journalists
Poynter
February 25, 2014
By Ellyn Angelotti
The U.S. Department of Justice’s new revised guidelines tightening government access to journalists’ records officially take effect this week. Yet the protections are not absolute, leaving some important exceptions in the hands of the Justice Department and Attorney General Eric Holder to circumvent the safeguards, particularly when it comes to classified information deemed potentially harmful.
The guidelines specifically aim to shield journalists from “certain law enforcement tools,” the department noted, including subpoenas, court orders and search warrants that “might unreasonably impair ordinary newsgathering activities.” …
How the new rules could help journalists
The DOJ emphasizes that it will use law enforcement tools to seek information from journalists only in “extraordinary measures,” rather than as part of standard investigatory practices.
Unless the attorney general or another senior official in the department has authorized it (or an exception exists), a Justice official must provide notice before issuing a warrant or subpoena for a journalist’s records.
The guidelines attempt to “strengthen the presumption” that DOJ attorneys will work with and provide journalists with advance notice when investigators seek to obtain the records related to the “scope of ordinary newsgathering,” which include third-party “communication records” and “business records.”
However, no advanced notice is required to obtain business records unrelated to ordinary newsgathering activities. Also, members of the Justice Department may apply for a search warrant if the journalist is the focus of a criminal investigation outside the scope of ordinary newsgathering.
Policy limits requests to essential information
The policy changes provide for additional considerations when seeking records from journalists. For example, requests are limited to those that provide essential information. …
Also, before seeking a journalist’s records, the government “should have made all reasonable attempts to obtain the information it is seeking from alternative, non-media sources.” …
According to the guidelines, proposed subpoenas or court orders should be tailored to specific information that:
● Is material and relevant.
● Focuses on a limited subject matter.
● Covers a reasonably limited time.
● Avoids requiring the production of a large volume of material.
This minimizes the potential for fishing expeditions or overly burdensome requests. …
Exceptions to the rule
The guidelines permit the attorney general to issue subpoenas for journalists’ records without notice and leave room for interpretations that could infringe on press freedoms.
● No notice required when risk of harm is present …
● Requests concerning classified leaks …
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