Weeks after an uproar over its aggressive surveillance of reporters in two national security leak probes—including accusations that it had criminalized journalism—the Justice Department on Friday released new guidelines designed to protect the media.
In one case, revealed in May, prosecutors obtained months of records for business and personal phones of dozens of Associated Press reporters during its investigation into a leak about a thwarted al Qaeda bomb plot in Yemen. Under the new guidelines announced by Attorney General Eric Holder, investigators must provide notice and negotiate with media outlets when they seek access to records in nearly all cases. Currently, notification can be delayed for months or longer if an Assistant Attorney General finds that it might endanger the investigation. The burden of proof is now reversed, requiring the Attorney General to determine affirmatively that advance notice will harm the investigation or national security. Only the Attorney General can delay notification, and only for a period of 45 days at a time. No delays are permitted after 90 days. Still, nothing in the new regulations outright prohibits the seizure of media records.
“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,” Holder said in a statement accompanying the report. “These revised guidelines will help ensure the proper balance is struck when pursuing investigations into unauthorized disclosures.”
Holder also announced a change pertinent to another high-profile leak probe, in which Justice Department attorneys obtained warrants for phone and email records of Fox News reporter James Rosen, who reported classified details about North Korea provided by a State Department source. Prosecutors had identified Rosen as a “criminal co-conspirator” in court documents to enable their access to those records. Holder announced Friday that warrants cannot be sought under the so-called “suspect exemption,” as in Rosen’s case, when the activity in question is directly related to news gathering. Additionally, the Attorney General must now personally approve any search warrants targeting members of the news media.
The changes seem likely to please President Barack Obama, who has presided over the aggressive federal prosecution of leaks, but who also said in a May speech that he was “troubled by the possibility that leak investigations may chill the investigative journalism that holds government accountable. Journalists should not be at legal risk for doing their jobs. “
Adding yet another layer of protection for journalists chasing government secrets, Holder said the new guidelines require the intelligence community to show that any information triggering a leak case was properly classified in the first place. And the Justice Department is tightening control over news media records it obtains, limiting disclosure only to those who have a need to know; using them only in relation to the specific investigation or judicial proceeding; and storing them in a secure, unsearchable facility. Only the Deputy Attorney General may allow pertinent records to be used in a separate case — and in particularly serious cases.
The Justice Department will also keep closer track of its own actions involving reporters. A “News Media Review Committee” will review all prosecutor requests for media records. (Committee members will include the Justice Department’s public affairs director and the department’s chief privacy and civil liberties officer.) The department will also publish annual data on requests and warrants for news media records. And it will create a “News Media Dialogue Group,” which will include news representatives and DOJ attorneys, and which will meet annually to assess the changes.
The early response from Washington reporters was positive. “Encouraging,” tweeted the New Yorker‘s Ryan Lizza, who has closely followed the issue. David Lauter, Washington bureau chief for the Los Angeles Times and Chicago Tribune tweeted that “our lawyers… are pretty excited” and that the guidelines “look like significant improvements.”
White House Press Secretary Jay Carney said Obama was briefed by Holder on the new guidelines Friday morning and that the President “accepted” the report.
The full report is below: