New DOJ Guidelines Impose Higher Restrictions To Obtain Evidence From Members Of The Media

New guidelines issued by the Department of Justice will tighten and limit the circumstances in which federal prosecutors may seek evidence from members of the news media; among several revisions, the Attorney General must approve "all search warrants and court orders issued pursuant to 18 U.S.C. § 2703(d) directed at members of the news media"; Attorney General Eric H. Holder, Jr. notes his support for media shield legislation

For the past few years, the Federal Evidence Blog has followed the debate over reporter shield legislation. See Prior Blog Posts on the Reporter Shield Law. Renewed focus on legislation surfaced on May 13, 2012 after news first broke concerning the use of federal grand jury subpoenas to obtain telephone records of reports. As we noted, legislation has been introduced in the current Congress. See Congress Watch: Renewed Focus On Reporter Shield Law Following Use Of Subpoenas For Reporters' Telephone Records.

On Friday, July 12, 2013, the Department of Justice revised its policies on when evidence may be obtained from the media. See Department Of Justice, Report On Review Of News Media Policies (July 12, 2013) (DOJ Media Report).

Some of the new restrictions include:

  • A presumption of providing advance notice to the media when its records are sought unless "the Attorney General affirmatively determines, taking into account recommendations from the newly established News Media Review Committee ..., that for compelling reasons, advance notice and negotiations would pose a clear and substantial threat to the integrity of the investigation, risk grave harm to national security, or present an imminent risk of death or serious bodily harm." DOJ Media Report, 2.
  • Search warrants involving the news media will not be approved unless "the member of the news media is the focus of a criminal investigation for conduct not connected to ordinary newsgathering activities"; no search warrants will be approved "if the sole purpose is the investigation of a person other than the member of the news media." DOJ Media Report, 3.
  • Enhanced approval standards will require that the Attorney General must approve "all search warrants and court orders issued pursuant to 18 U.S.C. § 2703(d) directed at members of the news media." DOJ Media Report, 3.
  • A new standing News Media Review Committee is established "to advise the Attorney General and Deputy Attorney General when Department attorneys request authorization to seek media-related records in investigations into the unauthorized disclosure of information." DOJ Media Report, 4. As before, the Office of Enforcment Operations will initially review any department requests for legal process to obtain information from members of the media.

Further details and standards, including on intelligence matters, are included in the DOJ Report.

Attorney General Eric Holder issued a statement about the revised media guidelines:

The Department of Justice is firmly committed to ensuring our nation’s security, and protecting the American people, while at the same time safeguarding the freedom of the press. These revised guidelines will help ensure the proper balance is struck when pursuing investigations into unauthorized disclosures. While these reforms will make a meaningful difference, there are additional protections that only Congress can provide. For that reason, we continue to support the passage of media shield legislation. I look forward to working with leaders from both parties to achieve this goal, and am grateful to all of the journalists, free speech advocates, experts, and Administration leaders who have come together in recent weeks – in good faith, and with mutual respect – to guide and inform the changes we announce today.

During Attorney General Holder’s confirmation hearing, he said he would support a federal shield law if "carefully crafted." In November 2009, Attorney General Holder and Director of National Intelligence Dennis Blair issued a letter to the Senate Judiciary Committee specifying the Administration's views on a compromise legislative proposal. Media shield legislation has stalled in past Congresses. See Summary of prior Congressional efforts. It remains to be seen whether the attention the use of legal process to obtain media records which was noted earlier this year, will provide renewed impetus for legislative support.

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