In a move seen as a victory for the press, the Department of Justice has issued new guidelines for prosecutors who want to subpoena the records of reporters in leak investigations.
The Los Angeles Times hails the new guidelines as a “historic step toward restraining the reach of government and affirming the rights of a free press.”
Most important, the new guidelines ensure that news organizations, in almost all instances, are given notice when prosecutors seek records related to news gathering. Notice, which was not given to the Associated Press, allows organizations to discuss the request with the Justice Department and, if necessary, to contest it in court.
Although the notice requirements are not absolute — there could be exceptions if alerting news organizations would pose a “substantial threat” to an investigation, cause grave harm to national security or risk death or serious harm — they make clear that notification should be the rule in almost all instances. Notice is an essential check on the abuse of executive power; these guidelines affirm it.
Similar restrictions would apply to prosecutors seeking search warrants in cases in which information held by journalists might reveal lawbreaking by others — specifically, those who supply reporters with classified
information or otherwise restricted material. The difficulty is that it is a crime to receive or possess some classified information. Again, the department’s new guidelines wisely address that problem by making clear that warrants will be sought only if reporters are under investigation for conduct unrelated to their work.
Finally, there is a small but telling revision governing the way the Justice Department culls large collections of data. Rather than simply sweeping up phone or Internet records, as prosecutors did in the AP case, Justice Department lawyers will be directed to confine themselves to “computer search protocols and keyword searches” that will limit the scope of their inquiries.
The Washington Post reports that in addition to specifying new notice requirements, the guidelines create an entity called the “News Media Review Committee” tasked with advising the department on press subpoenas:
The guidelines will also create a “News Media Review Committee” that will advise the attorney general and the deputy attorney general when Justice prosecutors request subpoenas or search warrants for information from members of the news media. The committee will include senior Justice officials, including the head of the department’s Public Affairs Office and its privacy and civil liberties officer.
Under the new rules, the department will begin releasing an annual list of the number of subpoenas and search warrants issued to reporters and news organizations. Justice officials said the Obama administration will continue to support efforts by Congress to pass a media shield law.
“While these reforms will make a meaningful difference, there are additional protections that only Congress can provide,” Holder said.
Media shield legislation, sponsored by Sen. Charles E. Schumer (D-N.Y.) would guard against some legal efforts to force journalists to divulge their confidential sources. It would require a judge, not the attorney general, to approve a subpoena for a reporter’s records.
Senate Majority Whip Dick Durbin idly contemplated who might be protected under a media shield law:
“Here is the bottom line – the media shield law, which I am prepared to support … still leaves an unanswered question, which I have raised many times: What is a journalist today in 2013? We know it’s someone that works for Fox or AP, but does it include a blogger? Does it include someone who is tweeting? Are these people journalists and entitled to constitutional protection?”
Mr. Durbin said a need existed to “ask 21st century questions about a provision in our Constitution that was written over 200 years ago,” but he did not offer solutions, or clarifications, Breitbart reported.
The thought of having people like Dick Durbin — or Eric Holder, for that matter — determine whether or not I’m a “journalist” gives me the shivers.
The test of any guidelines is not how they look on paper, but how they operate in the real world. A leopard can’t change its spots and the idea that Eric Holder and his boss are any less committed to stopping the damaging leaks pertaining to scandals just doesn’t track.
Those “exceptions” are probably going to be the norm going forward.