The Justice Department formally announced new rules designed to greatly limit prosecutors’ ability to obtain phone and email records of journalists.
The rules, unveiled Monday by Attorney General Merrick Garland, came after the revelation that the DOJ subpoenaed information from reporters for CNN, Washington Post and The New York Times, part of an effort that started during Donald Trump’s administration and largely played out without the journalists’ knowledge. The journalists were not targets of an investigation but were believed to be part of an effort to probe the source of leaks to the news media.
Garland wrote in a memo (read it here) that the department “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 newsgathering activities.”
President Joe Biden called the practice of reporters’ records being seized “simply, simply wrong,” and amid the furor the DOJ announced that it would change its policy. Garland met with representatives of the media organizations last month, along with Bruce Brown, executive director of the Reporters Committee for Freedom of the Press.
In the case of CNN, its legal counsel David Vigilante was aware of the subpoena for reporter Barbara Starr’s records, but he was put under a gag order for almost a year that prevented him from disclosing the Justice Department’s efforts to obtain the information.
The concern among First Amendment groups and news organizations had been that Justice Department continued the legal efforts to obtain records even after Biden took office.
The new policy does not apply to members of the media who are engaged in criminal activity, like insider trading, or when obtaining a subpoena is “necessary to prevent an imminent risk of death or serious bodily harm.” It also does not affect the DOJ’s ability to subpoena information from a government employee “who has unlawfully disclosed government information.”
In a statement, Brown said, “The attorney general has taken a necessary and momentous step to protect press freedom at a critical time. This historic new policy will ensure that journalists can do their job of informing the public without fear of federal government intrusion into their relationships with confidential sources.”