DOJ Media Guidelines Protect Journalists from Subpoenas and Search Warrants

The U.S. Department of Justice (DOJ) recently released an annual report on its efforts to obtain information and documents from the news media through subpoenas, warrants and other means. The most recent report—covering 2022—is particularly important because the DOJ formally updated regulations that year to significantly restrict the circumstances in which the DOJ can compel the news media and others to hand over information and records.

What Is the DOJ’s Current News Media Policy?

The DOJ regulations set forth the criteria and process for its use of subpoenas, search warrants, and court orders to obtain information and materials from the news media, including journalists and publishers. The rules govern the questioning, arresting, and charging members of the news media, as well as seeking materials such as phone records and information from email providers and other internet service providers (ISPs).

Except in limited circumstances, the DOJ cannot compel journalists acting within the scope of their newsgathering activities (or third-party telecommunications providers) to produce information or documents, including digital content, testimony, telecom records, or metadata. The policy is “intended to provide protection to members of the news media from certain law enforcement tools and actions, whether criminal or civil, that might unreasonably impair newsgathering,” because the DOJ recognizes “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.”

The exceptional circumstances in which the department may use compulsory legal process, such as a subpoena, to get information from the news media when they are acting within the scope of newsgathering are:

• To authenticate evidence that has already been published.
• If the media representative agrees to provide the material or consents to a third party providing the records.
• When necessary to prevent an imminent or concrete risk of death or serious bodily harm, such as a terrorist attack, kidnapping, or impairment of infrastructure.

Even in these cases, the rules require that an Assistant or Deputy Attorney General or the Attorney General himself authorize the process. The DOJ must provide notice to the journalist or news organization of a subpoena to a third party, unless the authorizing official determines that such notice would pose a clear and substantial threat to the integrity of the DOJ’s investigation. Finally, the process must be narrow and cover only relevant material in a limited time frame.

This regulatory shield does not apply to purely commercial, financial, administrative, or technical records not related to newsgathering. And the regulations do not protect a member of the news media who is the subject or target of a criminal investigation for conduct outside the scope of newsgathering.

What Is Newsgathering?

So, what exactly is newsgathering? The DOJ’s broad definition is “the process by which a member of the news media collects, pursues, or obtains information or records for purposes of producing content intended for public dissemination.”

Newsgathering may include:

• Receiving classified information
• Possessing classified information
• Publishing classified information
• Establishing a means of receiving such information, including from an anonymous or confidential source.

Newsgathering is not any of these criminal acts committed while obtaining or using information:

• Breaking and entering
• Theft
• Unlawfully accessing a computer or computer system
• Unlawful surveillance or wiretapping
• Bribery
• Extortion
• Fraud
• Insider trading
• Aiding or abetting or conspiring to engage in such criminal activities, with the requisite criminal intent.

Thus, the regulations protect reporters’ steps to set up encrypted communication channels with  sources—a common feature of investigative reporting today—while they would not protect a reporter’s hacking into another person’s computer to obtain information, a criminal act.

How Does the Current Policy Differ from the Past?

The DOJ policy on investigating the media dates back to about 1970, a result of repeated government efforts to force journalists to reveal their sources. But successive administrations have violated the policy. For example, during the Obama administration, the DOJ secretly subpoenaed and seized phone records of the Associated Press, including thousands of newsgathering calls, as well as telephone and e-mail records of Fox News’s chief Washington correspondent. Such surveillance raises First Amendment concerns because of the potential to chill the flow of reporting on national security. It also implicates the Fourth Amendment right to be free of unreasonable search and seizure.

In response to an outcry, the DOJ updated its guidelines in 2015. That policy was intended to balance the needs of law enforcement and national security with the need to protect journalists’ ability to inform the public by keeping their sources confidential. However, during the Trump administration, the DOJ authorized secret demands for the phone and email records of  reporters from CNN, The New York Times, and The Washington Post.

After another outcry, Attorney General Merrick Garland announced a new policy in 2021, and the DOJ issued the new regulations in 2022, doing away with the balancing test.

What Does the Recent Disclosure Tell Us About Implementation?

Past violations show that the policy is only as effective as its implementation, which is why the DOJ’s annual report can be informative.

The DOJ updated its regulations in October 2022, so the most recent disclosure on implementation – covering calendar year 2022 – straddles the before and after.  The most striking distinction between the two periods is that, prior to the new regulations being issued, in six instances, the DOJ issued subpoenas or warrants for materials or questioned members of the news media regarding activity within the scope of newsgathering. After the revised regulations were adopted, there was only one such occurrence related to newsgathering: a grand jury subpoena for video footage of the January 6, 2021 attack on the U.S. Capitol. Given that the report covered 10 months under the old regulations and only two months under the new ones, it’s difficult to say if the drop in incidents is attributable to the new restrictions or merely the shorter time period. The 2023 report should shed more light on implementation of the new policy.

What’s Next?

With a new Trump administration set to take over in January, it’s unclear if the DOJ will follow the current guidelines, ignore them, or change them again. Meanwhile, friends of the news media in Congress have been trying to pass a federal “shield law” that would protect the confidential relationship between journalists and their sources and prohibit government surveillance of journalistic activity through phone and email providers. The PRESS Act passed the House but has languished in the Senate Judiciary Committee. In the meantime, most states already have some type of shield statute in place.

No statute, however, protects journalists’ communications records when they cross the U.S. border. The U.S. Supreme Court has held that the government may conduct routine inspections and searches at the border without a warrant, which is why press freedom groups advise journalists traveling internationally to carry devices with minimal information. The Court has yet to address how the border exception applies to mobile phones. Until it does, a series of conflicting decisions by federal courts have resulted in a patchwork of rights that depend on where a journalist crosses the border.

Please contact Elana Beiser, Mary Ellen Roy, Ashley J. Heilprin or any member of the Phelps Media and First Amendment Law team if you have questions or need advice or guidance.