Attorney General Order on Policy Regarding Questioning, Arresting, or Charging Members of the News Media

The following Attorney General Order was originally obtained and published by Charlie Savage of the New York Times. It was subsequently published in the Federal Register on February 27, 2014.

AG Order No. 3420-2014 Policy Regarding Obtaining Information From, or Records of, Members of the News Media; and Regarding Questioning, Arresting, or Charging Members of the News Media

20 pages
February 2014

SUMMARY: This rule amends the policy of the Department of Justice regarding the use of subpoenas, certain court orders, and search warrants, to obtain information from, or records of, members of the news media. The rule also amends the Department’s policy regarding questioning, arresting, or charging members of the news media.

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In May of 2013, the Department initiated a comprehensive evaluation of its practices and policies regarding the use of subpoenas, court orders, and search warrants to obtain information from, or records of, members of the news media. As part of this process, the Department convened a series of meetings to solicit input from a wide range of news media stakeholders, First Amendment academics and advocates, and Members of Congress. Based on this review, the Department issued a report on July 12, 2013, announcing changes to the Department’s policies.

This final rule revises the existing provisions in the Department’s regulations at 28 CFR 50.10. The revisions are intended to ensure that, in determining whether to seek information from, or records of, members of the news media, the Department strikes the proper balance among several vital interests: (1) protecting national security, (2) ensuring public safety, (3) promoting effective law enforcement and the fair administration of justice, and (4) safeguarding the essential role of the free press in fostering government accountability and an open society. The revisions also ensure more robust oversight by senior Department officials; centralize the internal review and evaluation process; set out specific standards for the use and handling of information obtained from, or records of, members of the news media; and extend the policies to cover the use of subpoenas, court orders issued pursuant to 18 U.S.C. 2703(d) and 3123, and search warrants.

The changes to the policy also strengthen the presumption that Department attorneys will negotiate with, and provide advance notice to, affected members of the news media when investigators seek to obtain from third parties communications records or business records related to ordinary newsgathering activities.

A cross-reference to the new policy has been added to part 59, pertaining to documentary materials held by third parties.

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§ 50.10 Policy Regarding Obtaining Information From, or Records of, Members of the News Media; and Regarding Questioning, Arresting, or Charging Members of the News Media.

(a) Statement of Principles.

(1) Because freedom of the press can be no broader than the freedom of members of the news media to investigate and report the news, the Department’s policy is intended to provide protection to members of the news media from certain law enforcement tools, whether criminal or civil, that might unreasonably impair ordinary newsgathering activities. The policy is not intended to extend special protections to members of the news media who are the focus of criminal investigations for conduct not based on, or within the scope of, ordinary newsgathering activities.

(2) In determining whether to seek information from, or records of, members of the news media, the approach in every instance must be to strike the proper balance among several vital interests: protecting national security, ensuring public safety, promoting effective law enforcement and the fair administration of justice, and safeguarding the essential role of the free press in fostering government accountability and an open society.

(3) The Department views the use of certain law enforcement tools, including subpoenas, court orders issued pursuant to 18 U.S.C. 2703(d) or 3123, and search warrants to seek information from, or records of, non-consenting members of the news media as extraordinary measures, not standard investigatory practices. Subpoenas or court orders issued pursuant to 18 U.S.C. 2703(d) or 3123, in particular, may be used, after authorization by the Attorney General, or by another senior official in accordance with the exceptions set forth in paragraph ( c )(3) of this section, only to obtain information from, or records of, members of the news media when the information sought is essential to a successful investigation, prosecution, or litigation; after all reasonable alternative attempts have been made to obtain the information from alternative sources; and after negotiations with the affected member of the news media have been pursued, unless the Attorney General determines that, for compelling reasons, such negotiations would pose a clear and substantial threat to the integrity of the investigation, risk grave harm to national security, or present an imminent risk of death or serious bodily harm.

(4) When the Attorney General has authorized the use of a subpoena, court order issued pursuant to 18 U.S.C. 2703(d) or 3123, or warrant to obtain from a third party communications records or business records of a member of the news media, the affected member of the news media shall be given reasonable and timely notice of the Attorney General’s determination before the use of the subpoena, court order, or warrant, unless the Attorney General determines that, for compelling reasons, such notice would pose a clear and substantial threat to the integrity of the investigation, risk grave harm to national security, or present an imminent risk of death or serious bodily harm.

(b) Scope.

(1) Covered individuals and entities.

(i) The policy governs the use of certain law enforcement tools to obtain information from, or records of, members of the news media.
(ii) The protections of the policy do not extend to any individual or entity who is or is reasonably likely to be-

(A) A foreign power or agent of a foreign power, as those terms are defined in section 101 of the Foreign Intelligence Surveillance Act of 1978 (50 U.S.C. 1801);

(B) A member or affiliate of a foreign terrorist organization designated under section 219(a) of the Immigration and Nationality Act (8 U.S.C. 1189(a));

(C) Designated as a Specially Designated Global Terrorist by the Department of the Treasury under Executive Order No. 13224 of September 23,2001 (66 FR 49079);

(D) A specially designated terrorist as that term is defined in 31 CFR 595.311 (or any successor thereto);

(E) A terrorist organization as that term is defined in section 212(a)(3)(B)(vi) of the Immigration and Nationality Act (8 U.S.C. 1182(a)(3)(B)(vi));

(F) Committing or attempting to commit a crime of terrorism, as that offense is described in 18 U.S.C. 2331(5) or 2332b(g)(5);

(G) Committing or attempting the crime of providing material support or resources, as that term is defined in 18 U.S.C. 2339A(b)(1), to a terrorist organization; or

(H) Aiding, abetting, or conspiring in illegal activity with a person or organization described in paragraphs (b )(1 )(ii)(A) through (G) of this section.

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(f) Questioning members of the news media about, arresting members of the news media for, or charging members of the news media with, criminal conduct they are suspected of having committed in the course of, or arising out of, the coverage or investigation of news, or while engaged in the performance of duties undertaken as members of the news media.

(1) No member of the Department shall subject a member of the news media to questioning as to any offense that he or she is suspected of having committed in the course of, or arising out of, the coverage or investigation of news, or while engaged in the performance of duties undertaken as a member of the news media, without notice to the Director of the Office of Public Affairs and the express authorization of the Attorney General. The government need not view the member of the news media as a subject or target of an investigation, or have the intent to prosecute the member of the news media, to trigger the requirement that the Attorney General must authorize such questioning.

(2) No member of the Department shall seek a warrant for an arrest, or conduct an arrest, of a member of the news media for any offense that he or she is suspected of having committed in the course of, or arising out of, the coverage or investigation of news, or while engaged in the performance of duties undertaken as a member of the news media, without notice to the Director of the Office of Public Affairs and the express authorization of the Attorney General.

(3) No member of the Department shall present information to a grand jury seeking a bill of indictment, or file an information, against a member of the news media for any offense that he or she is suspected of having committed in the course of, or arising out of, the coverage or investigation of news, or while engaged in the performance of duties undertaken as a member of the news media, without notice to the Director of the Office of Public Affairs and the express authorization of the Attorney General.

(4) In requesting the Attorney General’s authorization to question, to arrest or to seek an arrest warrant for, or to present information to a grand jury seeking an indictment or to file an information against, a member of the news media for an offense that he or she is suspected of having committed during the course of, or arising out of, the coverage or investigation of news, or while engaged in the performance of duties undertaken as a member of the news media, a member of the Department shall state all facts necessary for a determination by the Attorney General.