Legal Alert

DOJ Broadly Prohibits Seizing Reporters' Records

by Lynn Oberlander and Charles D. Tobin
November 1, 2022

Summary

The U.S. Department of Justice (DOJ) has released a new rule sharply limiting government subpoenas that could unmask journalists’ sources.

The Upshot

  • The new regulations follow 2021 revelations that the Trump administration had secretly sought (and in some cases obtained) phone and email records from service providers for journalists at the New York Times, CNN, and the Washington Post.
  • On October 26, the DOJ unveiled its “Policy Regarding Obtaining Information from or Records of Members of the News Media; and Regarding Questioning, Arresting, or Charging Members of the News Media.”
  • The new policy broadly prohibits the government from seeking reporters’ information using any form of compulsory legal process, including subpoenas, search warrants, court orders issued pursuant to 18 U.S.C. 2703(d) and 3123, and mutual legal assistance treaty requests, among others. There are narrow exceptions.

The Bottom Line

The regulations represent an extremely positive development for journalists and news organizations, but they can be modified by future administrations and are not the law. Last year, bills were introduced in the House and Senate to enshrine some type of reporter’s privilege into federal law.

In a major step forward for journalists’ ability to protect news sources, the U.S. Department of Justice (DOJ) has released a new rule sharply limiting government subpoenas.

“[R]ecogniz[ing] the important national interest in protecting journalists from compelled disclosure of information revealing their sources, sources they need to apprise the American people of the workings of their government,” the final rule prohibits–with a few narrow exceptions–the use of compulsory legal process to obtain information from the news media about their newsgathering. The rule also limits the government’s ability to subpoena phone, email, or digital services providers for journalists’ information. 

The new regulations follow 2021 revelations that in leak investigations the Trump administration had secretly sought (and in some cases obtained) phone and email records from service providers for journalists at the New York Times, CNN, and the Washington Post. The DOJ, under Attorney General William Barr, had obtained secret court orders with gags that prevented the service providers from disclosing the warrants to the newsrooms. When asked about the Trump administration’s efforts to unmask the journalists’ sources, President Biden said, “It’s simply, simply wrong,” and “I will not let that happen.” Following that somewhat spontaneous policy declaration, the DOJ announced a change to its longstanding policy, which had permitted certain investigations into reporters’ sources, and declared that the DOJ “will not seek compulsory legal process in leak investigations to obtain source information from members of the news media doing their jobs.” In July 2021, Attorney General Merrick Garland issued a three-page memo more clearly delineating the new policy, and said that new regulations would follow.

On October 26, the DOJ unveiled its “Policy Regarding Obtaining Information from or Records of Members of the News Media; and Regarding Questioning, Arresting, or Charging Members of the News Media.”  28 CFR Part 50.

The policy broadly prohibits the government from seeking reporters’ information using any form of compulsory legal process, including subpoenas, search warrants, court orders issued pursuant to 18 U.S.C. 2703(d) and 3123, and mutual legal assistance treaty requests, among others. There are narrow exceptions, including when a reporter is under investigation in a matter unconnected to newsgathering; when a journalist is an agent of a foreign power or a foreign terrorist group, and when necessary to prevent an imminent or concrete risk of death or serious bodily harm. In addition, the government can obtain records with consent of the member of the news media or to authenticate already published information or records. Approval for any exceptional use must come from either the Attorney General or a high-level deputy, depending on the circumstances.

The policy describes “newsgathering” to include “the mere receipt, possession, or publication by a member of the news media” of government information, including classified information, “as well as establishing a means of receiving such information, including from an anonymous or confidential source.” But it carves out from its definition of newsgathering any “criminal acts committed in the course of obtaining information or using information” such as breaking and entering, theft, or aiding or abetting such criminal activities.

The Assistant Attorney General for the Criminal Division must approve any determination where there is a “close or novel question” as to whether an individual or entity is a member of the news media, or whether they are engaged in newsgathering.

The regulations represent an extremely positive development for journalists and news organizations, but they can be modified by future administrations and are not the law. In 2021, bills were introduced in both Houses of Congress to enshrine some type of reporter’s privilege into federal law. In September, the PRESS ACT (Protect Reporters from Excessive State Suppression) passed the House of Representatives with unanimous, bipartisan support. It has now moved on to the Senate and has been referred to the Committee on the Judiciary.

The attorneys in Ballard Spahr’s Media and Entertainment Law Group help clients across platforms navigate some of the most challenging legal issues that arise in a healthy, functioning democracy—in the newsroom and in court. Our clients range from global news, entertainment, and advertising companies to local newspapers, news startups, freelance journalists, and internet companies. We also represent studios, directors and producers, sports teams, universities, authors, filmmakers, nonprofits, and government watchdog organizations—anyone who creates or disseminates content. Please contact us for more information.

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