Garland Tells Prosecutors Not to Seize Reporters’ Records

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Attorney General Merrick Garland on Monday issued a broad ban on using subpoenas, warrants or court orders to seize reporters’ records from their employers or from communications firms in an effort to uncover their confidential sources in leak investigations, outlining sharp new limits on the practice.

“The Department of Justice will no longer use compulsory legal process for the purpose of obtaining information from or records of members of the news media acting within the scope of news-gathering activities,” Mr. Garland wrote to federal prosecutors in a three-page policy memo, adding that the department would also revise its regulations to reflect the new limit.

The memo, which also bans forcing reporters to testify about their sources or turn over their notes, said the Justice Department would support legislation to give greater protections to reporters’ information to better ensure that they hold under future administrations.

Mr. Garland’s memo laid out a set of exceptions. They included if a reporter is under investigation for an unrelated crime; if a reporter is suspected of committing a crime like “breaking and entering” to gather information; if the department is seeking to authenticate already published information — a situation that arises sometimes in television news broadcasts of footage that can be evidence of a crime; or if reporters themselves have been deemed to be agents of foreign power or members of foreign terrorist groups.

An exception will also apply in situations where seizing reporters’ records is deemed “necessary to prevent an imminent risk of death or serious bodily harm, including terrorist acts, kidnappings, specified offenses against a minor” or attacks that could incapacitate or destroy critical infrastructure, Mr. Garland wrote.

The memo has been expected since last month, when President Biden vowed not to let the department seize reporters’ phone and email records amid disclosures that it had done so late in the Trump administration in cases involving The New York Times, The Washington Post and CNN.

Under previous rules, prosecutors had to obtain high-level permission to seize reporters’ data for leak investigations, and they were generally supposed to notify news organizations ahead of time so the scope of the request could be negotiated or challenged in court. But the attorney general or a small number of other high-level officials could make exceptions.

Recently unsealed court filings show that the Justice Department initiated a secret effort to get court orders to seize email records of reporters at both The Times and The Post on Dec. 22, 2020 — the day before then-Attorney General William P. Barr left office.

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

Those investigations involved leaks in 2017. In a separate leak investigation that was also revealed this spring, the Trump-era Justice Department obtained the phone records and some email records of a CNN reporter.

Mr. Garland has embraced the idea of ending such seizures in meetings with newsroom leaders, and press-freedoms advocates praised his memo as a sweeping and significant change in how the department has operated under administrations of both parties.

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

“This will help ensure that journalists can do the work we need them to do — shine a light on government conduct, inform public debate, and hold the powerful accountable — no matter which party is in control of the executive branch,” he said in a statement.

Mr. Jaffer also flagged that some issues remain unanswered related to how broadly the department will define and interpret some key terms in the new rules, like “news gathering,” calling them gaps that should be filled when the department issues its new regulation.

One ambiguity, he noted, is that the memo discusses a prohibition on compulsory legal tools that are listed in the old regulation — subpoenas, warrants and court orders — but does not mention another such tool the department sometimes uses to obtain records like logs of communications in national security inquiries, called a national security letter.

Still, the phrasing of Mr. Garland’s memo suggested an answer to one open question raised by the administration’s vow to restrict leak investigations to better protect reporters’ ability to do their jobs: whether the policy would protect reporters’ records in situations in which their source is suspected of being an outside hacker who stole information, as opposed to a government insider who leaked it.

Based on its wording, a reporter’s records would apparently still be protected from seizure in that circumstance. The memo said the prohibition would apply whenever “a member of the news media has, in the course of newsgathering, only possessed or published government information, including classified information.”

The new limits apply only to reporters’ records. Mr. Garland noted that the government would still be able to seize records of officials who are suspected of being the source of unauthorized disclosures.

In his memo, Mr. Garland noted that the Justice Department had previously operated under a “balancing test” that included some procedural limits on when prosecutors could seize reporters’ records, and required senior officials to weigh the interest in protecting a free flow of information to the press against the interest in gathering evidence that could solve crimes.

The attorney general wrote, however, that there were “shortcomings” to that approach and that the new policy was intended to better protect journalists’ ability to do their jobs.

“The United States has, of course, an important national interest in protecting national security information against unauthorized disclosure,” he wrote. “But a balancing test may fail to properly weight 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.”

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