In the wake of criticism over the seizing of reporter's records in the course of its investigations, the Department of Justice is issuing new guidelines to more tightly restrict when and how journalists can be targeted.
As the New York Times reports, the new rules would prevent the FBI from considering reporters to be co-conspirators when they obtain or publish leaked documents. It would also make it harder for prosecutors to obtain telephone records from news organizations without advance notice. The default position will now be that advance notice is required, unless there are "compelling reasons" that would pose a threat to the investigation. As the article points out, until Congress passes a federal shield law, the DOJ guidelines would go no further, such as requiring a judge to approve subpoena requests. Exceptions would only be allowed if approved by the Attorney General and only if the criminal investigation goes "beyond ordinary news-gathering activities."
Attorney General Eric Holder met with media outlets and journalism organizations like RTDNA over the past several weeks to seek input for the new guidelines. The Department will also issue an annual report detailing its efforts to obtain search warrants or subpoenas involving news media records. Here is the full Attorney General's report as presented to the President.
In a statement, RTDNA Executive Director Mike Cavender said, "RTDNA appreciated the opportunity to meet with the Attorney General and DOJ staff to discuss these issues and we’re encouraged to see that, at this point, they have heard our concerns and those of scores of other news organizations about the need to significantly restrict their investigative efforts related to issues that may involve journalists.”
“We are pleased to see that specific changes designed to protect the news gathering efforts of journalists and their First Amendment Right to gather news independently are being put in place.”
“The true impact of these changes will only be known if and when future investigations take place. The key will be in the DOJ’s good faith efforts to internally enforce these new standards.”
“In addition to these changes, we still need a federal shield law, such as has been proposed by New York Senator Charles Schumer. That bill would offer even more protection to journalists and it’s long overdue.”
The Reporters Committee for Freedom of the Press is compiling reaction to the new guidelines.