By Charlie Savage
The Justice Department earlier this week formally banned the use of subpoenas, warrants or court orders to seize reporters’ communications records or demand their notes or testimony in an effort to uncover confidential sources in leak investigations, in what amounts to a major policy shift.
The rules institutionalize — and in places expand — a temporary policy that Attorney General Merrick Garland put in place in July 2021, after the revelation that the Justice Department, under Attorney General William Barr, had secretly pursued email records of reporters at The New York Times, The Washington Post and CNN.
ese regulations recognize the crucial role that a free and independent press plays in our democracy,” Garland said in a statement. “Because freedom of the press requires that members of the news media have the freedom to investigate and report the news, the new regulations are intended to provide enhanced protection to members of the news media from certain law enforcement tools and actions that might unreasonably impair news gathering.”
The broad prohibitions are a major change in how the Justice Department has come to approach leak investigations in the 21st century, when it began a crackdown that spans administrations of both parties and has put pressure on reporting on matters of national security.
The publisher of the Times, A.G. Sulzberger, who was put under a gag order in 2021 that shielded from his own newsroom’s view a legal fight over the email logs of Times journalists, praised the new policy while calling on Congress to pass a law further strengthening such protections.
“We applaud the Justice Department for taking this important step, which will allow journalists to perform the crucial work of informing the public without fear of legal consequences,” Sulzberger said. “We encourage Congress to enact a federal shield law to help ensure that these reforms are lasting.”
Exceptions to the policy are narrow. Among others, it does not apply to situations in which a reporter is under investigation for something unconnected to news gathering, situations in which a member of the news media is deemed an agent of a foreign power or a member of a foreign terrorist group, or “when necessary to prevent an imminent or concrete risk of death or serious bodily harm.”
The Justice Department developed the regulation in consultation with press freedom advocates like Bruce D. Brown, executive director of the Reporters Committee for Freedom of the Press. Garland also met with representatives from the Times, the Post, The Associated Press, CBS, CNN, Dow Jones, NBC and The New Yorker.
Those conversations led to several adjustments about potentially critical issues, like how “news gathering” is defined. According to participants, the Justice Department originally intended to define it in a way that was limited to the passive receipt of government secrets. But the final version now covers the act of pursuing information.
The regulation defines “news gathering” as “the process by which a member of the news media collects, pursues, or obtains information or records for purposes of producing content intended for public dissemination,” including “classified information” from confidential sources.
The Justice Department is also said to have removed espionage from a list of criminal activities that are excluded from protected news gathering.
The final regulation does not cover criminal acts “committed in the course of obtaining information or using information.” Those include breaking and entering; theft; unlawfully gaining access to a computer or computer system; unlawful surveillance or wiretapping; bribery; or aiding or abetting or conspiring to engage in such criminal activities.
While the regulation is limited to members of the news media, the department did not define that term — a notoriously murky task in the internet era, when anyone can disseminate information.
The regulation instead says that when that person’s status is in question, the head of the department’s criminal division will decide. It also says if that official finds “genuine uncertainty” on whether an act falls within the scope of news gathering, the attorney general then intervenes.
Two investigations that span the Trump and Biden eras have raised questions about how the department defines members of the news media engaged in news gathering.
In 2019, the department charged WikiLeaks founder Julian Assange with crimes that include violating the Espionage Act by soliciting and publishing classified information — just as traditional reporters do when gathering news about national security matters. The indictment was brought in connection with archives of military and diplomatic documents leaked by Chelsea Manning. Assange is fighting extradition from Britain.
The department also obtained search warrants for emails in 2020 and locations in 2021 associated with the conservative group Project Veritas in connection with an investigation related to its $40,000 payment for a diary that had been stolen from Ashley Biden, President Joe Biden’s daughter, during the closing weeks of the 2020 campaign.
The group has pointed to First Amendment protections for journalism to justify its actions. It remains unclear whether or how the Justice Department interpreted its news media rules as applying to search warrants and data seizures aimed at Project Veritas over the matter.
It used to be extraordinarily rare for the Justice Department to charge people with a crime for providing information to reporters without authorization — or to seize reporters’ records in an effort to identify their sources.
But during the second term of the Bush administration, the department began more aggressively trying to investigate and prosecute leaks of national security secrets.
Because the electronic trail left by modern communications makes it easier to identify potential suspects, such cases became far more routine, continuing through the Obama and Trump administrations.
After the scope of the Trump-era tactics against major news outlets came to light, Biden vowed to ban the practice. In apparent off-the-cuff remarks, he described it as “simply, simply wrong,” leading to Garland’s memo in July 2021. The codification of the changes will make it harder for a future administration to roll it back.
“This is a watershed moment,” Brown said in a statement. “The new policy marks a historic shift in protecting the rights of news organizations reporting on stories of critical public importance.”