Garland Tells Prosecutors Not to Seize Reporters’ Records

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WASHINGTON — Attorney General Merrick B. Garland on Monday outlined sharp new boundaries by enacting a broad ban on the use of subpoenas, warrants, or court orders to confiscate reporters’ records from their employers or communications companies in an attempt to uncover hidden sources in leak investigations. practically.

“The Department of Justice will no longer use mandatory legal process to obtain information or records from members of the news media acting as part of newsgathering activities,” Garland told federal prosecutors. in a three-page policy note. He added that the ministry will also review its regulations to reflect the new limit.

The memo, which also prohibits forcing reporters to testify about their sources or turn over their notes, said the department would support legislation to provide greater protection to reporters’ information to ensure that the policy changes Mr Garland announced would apply under future administrations. .

Mr. Garland’s note contained a number of exceptions. If a reporter is under investigation for an unrelated crime; if a reporter is suspected of committing an offense such as “smuggling and breaking in” to gather information; if the department wants to verify information that has already been published – a situation that sometimes occurs in television news broadcasts, which can be evidence of a crime; or if the reporters themselves are considered agents of foreign power or members of foreign terrorist groups.

An exception will also apply where the seizure of reporters’ records is deemed necessary to “avoid the imminent risk of death or serious bodily harm, including acts of terrorism, kidnapping, certain crimes against minors,” or to prevent attacks that could disable or destroy critical infrastructure, Mr. Garland wrote.

Your note had been expected since last month. President Biden sworn in Not allowing reporters to seize phone and email records amid revelations made too late in the Trump administration in cases involving The New York Times, The Washington Post, and CNN.

AG Sulzberger, publisher of The Times, was one of the few writers. News media leaders meeting with Mr. Garland On the matter last month, he praised the policy note while calling for additional action by Congress.

“The new policy, which largely prevents federal prosecutors from summoning news media recordings or testimonies to court, represents an important step forward in protecting press freedom,” Sulzberger said. “But there is more to be done, and we urge the Biden administration to work with Congress to pass a federal shield law to make these improvements permanent.”

Under previous rules, prosecutors were required to obtain high-level permission to confiscate reporters’ data for leak investigations, and were often required to notify news organizations in advance so that the scope of the request could be discussed or challenged in court. However, the attorney general or a small number of other senior officials can make exceptions.

Recently unsealed court files Show that the Department of Justice has launched a covert effort to obtain a court order to confiscate journalists’ email records. both The Times and on December 22, The Post — the day before William P. Barr left his post as attorney general.

Prosecutors were able to separately confiscate journalists’ phone records without a court order. The department never obtained the email data, but the fight for it spilled over into the early Biden era, and in the case of The Times, extraordinary gag orders were imposed on lawyers and executives for the newspaper.

These investigations included leaks from 2017. In a separate leak investigation, which also came to light this spring, the Trump-era Justice Department obtained phone records and some email recordings of a CNN reporter.

In meetings with newsroom leaders, Mr. Garland adopted the idea Press freedom advocates lauded his rating as a sweeping and significant change in how the department functions under the administrations of both parties.

Jameel Jaffer, director of the Knight First Amendment Institute at Columbia University, called the new policy an “important step forward”, while calling it “important” that Congress enacted Mr. Garland’s rules.

“This will help ensure that journalists can do the work we need them to do, such as shedding light on government behavior, informing public debates and holding the powerful accountable, no matter which party controls the executive branch,” he said. Declaration.

Mr Jaffer also flagged some unanswered questions about how broadly the department would define and interpret key terms like “news gathering” in the new rules. He told them about the gaps that need to be filled when the ministry issues its new regulation.

One ambiguity, he noted, was in the note discussing a ban on mandatory legal instruments (subpoenas, warrants and court orders) listed in the old regulation, but not mentioning another such tool that the ministry sometimes uses to obtain records such as communication logs. In national security investigations, it is called a national security letter.

Nevertheless, the wording of Mr. Garland’s note suggested an answer to the question: an open question: Whether the policy will protect the records of reporters in cases where the source is suspected to be an outside hacker rather than a government leaker.

According to his testimony, a reporter’s records are apparently still preserved. The memo said the ban would apply where “a member of the news media, at the time of news gathering, only possesses or publishes government information, including confidential information.”

The new limits apply only to correspondent registrations. Mr Garland noted that the government could still confiscate records of officials suspected of being the source of unauthorized disclosures.

Mr Garland noted in his note that the Justice Department had previously operated under a “balancing test” that included some procedural limitations on when prosecutors could seize journalists’ records and asked senior officials to weigh the interests of maintaining the free flow of information. opposes the press against the collection of evidence that can solve crimes.

However, the attorney general wrote that there are “shortcomings” in this approach and that the new policy is aimed at better protecting journalists’ ability to do their jobs.

“The United States, of course, has an important national interest in protecting national security information from unauthorized disclosure,” he wrote. “But a balancing test may not adequately weigh the important national interests of protecting journalists from mandating their sources to disclose information revealing the resources they need to inform the American people about the workings of their government.”

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