Department Of Justice Issues Revised News Media Subpoena Policies

Introduction

On July 12, 2013, the U.S. Department of Justice (the “Department” or “DOJ”) released a report announcing new guidelines relating to obtaining records or information from the news media. The report came in response to President Obama’s May 2013 request that the Attorney General revisit the Department’s media policies after it was revealed that the Department had secretly subpoenaed two months’ worth of phone records for some 20 phone lines used by Associated Press journalists. In its Report on Review of News Media Policies (“the Report”), the Department announced significant changes in its policies relating to search warrants, subpoenas, and court orders aimed at gathering information from the news media and also expressed strong support for a federal shield law that would provide additional protection for the news media.

Without conceding deviation from its existing guidelines in its pursuit of the AP phone records – indeed, it has publicly insisted otherwise[1] – the Department appears to have considered, among other things, objections made by the Reporters Committee for Freedom of the Press in a May 14, 2013 letter, signed by 51 other media companies and trade associations. The letter identified a number of respects in which the Department appeared to have departed from the current DOJ guidelines for subpoenas of the news media (found at 28 C.F.R. § 50.10), including a requirement to provide advance notice of the intent to seek a subpoena and to negotiate with the news media in all cases involving telephone records. The Report also drew upon some seven meetings held by Attorney General Eric Holder with approximately 30 news media organizations, as well as with First Amendment groups, media industry associations, and academic experts.[2]

The New Policies

At a broad policy level, the Report declares that it “has been and remains the Department’s policy that members of the news media will not be subject to prosecution based solely on newsgathering activities” and that the Department views seeking evidence from or involving the news media “an extraordinary measure” to be used “only as a last resort” after “all reasonable alternative steps have been taken, and when the information sought is essential to a successful investigation or prosecution.” Along these lines, the Department states that it will undertake to work with the administration to identify ways the intelligence agencies “can address information leaks internally through administrative means, such as the withdrawal of security clearances and imposition of other sanctions.” The Report also states the Department’s commitment to striking an appropriate balance between protecting against the unlawful disclosure of classified information and “safeguarding the essential role of a free press in fostering government accountability and an open society.” In addition, the Report reiterates the Obama administration’s support for a federal shield law that would “provide a new mechanism for advance judicial review of the use of investigative tools such as subpoenas when they involve the news media.”

In terms of specific revisions to the Department’s policies, the most significant is a new presumption that advance notice to, and negotiations with, the news media will apply “in all but the most exceptional cases.” Current policy provides that such negotiations should occur only where the responsible Assistant Attorney General determines that negotiations would not pose a substantial threat to the integrity of the investigation, a finding that is then reviewed by the Attorney General. The new policy, by contrast, requires advance notice and negotiation except where the Attorney General finds a compelling basis – other than mere delay of an investigation – for finding that notice and negotiation would pose a “clear and substantial threat to the integrity of the investigation, risk grave harm to national security, or … an imminent risk of death or serious bodily harm.” Any delay in notification is to be limited to 45 days unless the Attorney General authorizes an additional delay of up to 45 days based on a finding of a “clear and substantial” threat of harm.

Other policy changes announced in the Report include:

• The “suspect exception” to the Privacy Protection Act of 1980, 42 U.S.C. § 2000aa, which generally prohibits the search or seizure of materials held by individuals who have a purpose to disseminate information to the public, would apply to the news media only when a member of the news media is the focus of a criminal investigation for conduct not connected to ordinary newsgathering activities. Thus, merely reporting leaked information would not implicate the exception.
• Approval of the Attorney General will be required for all search warrants and court orders issued pursuant to 18 U.S.C. § 2703(d) and directed at members of the news media. Consistent with what the current guidelines provide with respect to news media subpoenas, the Attorney General will consider whether the information sought is essential to a successful investigation, other reasonable alternative investigative steps to obtain the information have been exhausted, and the request is narrowly tailored. The new presumption of notice and the standards for delayed notice applicable to subpoenas (discussed above) also will apply to search warrants and to section 2703(d) orders directed to the news media.
• A News Media Review Committee will advise the Attorney General and Deputy Attorney General when Department attorneys request authorization to seek media-related records in leak investigations; in any criminal investigation without providing advance notice; and when Department attorneys seek testimony from a member of the media that would disclose a confidential source.
• Department attorneys involved in the issuance of subpoenas, search warrants, or court orders to the news media will be required to report on the status of such efforts to the Criminal Division’s Office of Enforcement Operations, and the Department will collect, and make public on an annual basis, statistical data relating to use of media-related process.
• The Department will establish an Attorney General’s News Media Dialogue Group to “assess the impact of the Department’s revised news media policies” and “maintain a dialogue with the news media.” The Group will meet six months after the new policies become effective and annually thereafter.

The changes described in the report are to be formalized in guidance to the Department’s law enforcement officials and attorneys, and the policy changes will be incorporated into the United States Attorney’s Manual and in revisions to 28 C.F.R. § 50.10, as appropriate.

Discussion

The new DOJ news media policies represent a constructive response by the Obama administration to the AP controversy, although their precise impact will depend upon the implementing regulatory language and its interpretation by the DOJ. As the Report acknowledges, the new DOJ policies do not obviate the need for a federal media shield law, which would provide a framework for judicial review and also would apply to subpoenas by private litigants and by criminal defendants. The administration’s renewed declaration of support for a shield law – an effort that was derailed in 2009 by the Wikileaks controversy – should help advance the prospects for passage of such legislation, which is widely (but not uniformly) supported by the news media. The Report has already informed specific amendments being proposed by Senator Schumer to strengthen the Senate bill.[3]

The importance of the Report and of the renewed shield-law effort was underscored shortly after the Report was released. On July 19, 2013, a divided Fourth Circuit panel – echoing the D.C. Circuit’s 2006 ruling in In re Grand Jury Subpoena, Judith Miller[4] – held in United States v. Sterling[5] that there is no First Amendment or common-law privilege protecting New York Times reporter James Risen from having to testify in the Espionage Act trial of former CIA agent Jeffrey Sterling, who is alleged to have leaked classified information to Risen. The circuit court, which held that it was bound by the Supreme Court’s rejection of a report’s privilege in Branzburg v. Hayes,[6] declared that it was up to the Supreme Court or to Congress to protect Risen from being compelled to testify. The day Sterling was handed down, Risen’s counsel filed the Report with the court as supplemental authority, arguing that it embraces the very multi-factor standard the panel rejected and supports recognition of a federal common-law reporter’s privilege.[7]

It remains to be seen whether the DOJ will continue to pursue Risen’s testimony in light of its new policies. With respect to more aggressive action against journalists – which some members of Congress have urged[8] – the Report disclaims any intent to prosecute reporters “based solely on newsgathering activities.” Whether the new DOJ guidelines, as implemented, will prevent the government from seeking to compel a reporter to testify in a leak prosecution will depend on the facts of the case, in particular on the government’s need for the testimony to establish the identity of the leaker.

The federal shield law bills in their current form would appear to preclude compelled testimony in leak prosecutions in many cases. The Senate bill (S.987) would allow the government to compel a reporter’s testimony in a leak prosecution without meeting a balancing test only if necessary to prevent (i) an act of terrorism or (ii) “other acts that are reasonably likely to cause significant and articulable harm to national security.”[9] The House bill (H.R. 1962) contains similar forward-looking, preventative language that arguably would not apply in a typical (retrospective) leak prosecution. Both bills would instead require the government to make a multi-factor showing in such cases, including that the information sought is “essential” (Senate) or “critical” (House) to the case. There is a strong argument (made by the dissent in Sterling) that the contemplated multi-factor test outlined in the bills would have protected Risen.

The Sterling ruling adds a sense of urgency to the Obama administration-endorsed push for a federal shield law. Such a law – whatever its precise scope – would eliminate the current uncertainty as to the existence of a federal reporter's privilege and would define its contours for courts across the country. This undoubtably would enhance the ability of journalists to keep the public informed about matters of the utmost public importance. In the meantime, as Justice White wrote in Branzburg of the 1970 DOJ guidelines for press subpoenas, the new DOJ rules are “a major step in the direction [the media] desire[s] to move."[10]

On September 12, 2013, an amended version of S.987 was passed by the Senate Judiciary Committee by a 13-5 vote. The amended bill contains a new, compromise definition of “covered journalist,” formulated through negotiations between Senate staff and media representatives, to meet objections raised by Senators Feinstein and Durbin. The definition would cover professional journalists in all media as well as certain bloggers, first-time authors, and other non-traditional journalists whose past engagement in newsgathering and disseminating news meets certain benchmarks. A catch-all provision would give a court the discretion to apply the law to persons who do not meet the definition “in the interest of justice” and to protect legitimate newsgathering activities. The bill now goes to the full Senate. Meanwhile, in the Sterling case, the Department of Justice rejected calls to withdraw the subpoena to Mr. Risen and instead opposed Risen’s petition for rehearing en banc.