Department of Justice
The Nuts and Bolts of the Revised Justice Dept. News Media Guidelines
In October 2022, the Department of Justice released its long-awaited regulation codifying a new policy prohibiting the use of subpoenas, search warrants, and other compulsory process to demand records from or of members of the news media, with only narrow exceptions. The reforms followed revelations in 2021 of sweeping subpoenas and court orders for phone and email records in three leak investigations, all authorized in the final year of the Trump administration.
The new Justice Department protections for journalists are effectively a complete revamp of the byzantine previous regulation. In this piece, we provide something of a user guide for the new policy.
Our acquaintance with the subject matter stems in part from our work at the Reporters Committee for Freedom of the Press, where we assist in coordinating the U.S. Attorney General’s News Media Dialogue Group. Then-Attorney General Eric Holder formed that entity in 2013, which includes members of the news media, attorneys from various department components, and the director of the Office of Public Affairs. The group reconvened in the wake of the 2021 revelations, following calls from news media representatives for a tightening of the policy. One of the authors of this piece attended several meetings with Attorney General Merrick Garland as part of these renewed discussions. Upon the revised policy’s release, the Reporters Committee described the new guidelines as “a historic shift in protecting the rights of news organizations reporting on stories of critical public importance.”
This piece proceeds in four parts. First, we discuss the main innovation in the new guidelines: the creation of a bright-line rule with respect to subpoenas, search warrants, or other compulsory legal process. That is, the policy bars the use of such process completely for members of the news media “acting within the scope of newsgathering,” with only narrow exceptions. Previously, if the investigative need was deemed great enough, the attorney general could authorize process employing the balancing test that used to govern these decisions.
Second, we summarize exclusions and exceptions to the policy.
Third, we explore how the three main checks against overreach in previous versions of the guidelines—advance notice to the affected member of the news media, senior-level approval, and exhaustion—now operate in the limited scenarios where process is still available.
Last, we note some miscellany in the new regulations.
Before diving in, however, it is important to emphasize two points about the guidelines.
First, they are just that: a voluntary internal policy at the Justice Department that can be changed at will. They are not enforceable in front of a judge. For this reason, we have long advocated for a strong federal shield law to protect journalists from having to identify sources or disclose sensitive work product in court. Attorney General Garland and the Justice Department have also expressed support for “legislation” to make the new policy “durable.”
Second, the protections of the bright-line rule extend only to legal process. Accordingly, journalists should be aware that, even though their records may be insulated from legal process, if the Justice Department independently has evidence sufficient to pursue an arrest or charge based on other sources, they should not expect the bright line in the guidelines to shield them.
With those qualifications, however, we would note that the revised bright-line policy—which was initially announced in a short memorandum from the attorney general in the summer of 2021—does appear to be limiting legal demands on the press. Except for a Boston Globe reporter subject to a trial subpoena under the exception for authenticating already published material, there have been no public reports since of legal process for records from or of a journalist. (There may be “friendly” process, where members of the news media voluntarily agree to cooperate with a subpoena, but certainly no controversies akin to the 2020 secret subpoenas and court orders.)
The Bright-Line Rule
The guidelines have an unusual origin story. In the middle of President Richard Nixon’s first term, the administration’s focus on “law and order” led to an unprecedented wave of subpoenas seeking to force journalists to disclose their sources. After federal officials targeted New York Times reporter Earl Caldwell for his coverage of the Black Panthers, broad outcry among the press and public took then-Attorney General John Mitchell by surprise.
Seeking to mollify critics, Mitchell announced in August 1970 that the department would implement a new policy that would “weigh” the limiting effect that compulsory process impacting members of the news media could have on the exercise of First Amendment rights against the “public interest to be served in the fair administration of justice.” That balancing test survived in various forms through the most recent administrations.
The October 2022 revision replaces the balancing test with a clear lane of protection keyed off the definition of “newsgathering.” In doing so, it draws a bright line that defines a new zone of protection. To understand how, it is important first to recognize that there are many federal criminal statutes that, read literally, could be deployed by an aggressive prosecutor to investigate or prosecute common newsgathering activities, including asking for, receiving, possessing, and publishing government secrets. Further, many routine journalistic acts—using encrypted communications or simply refusing to name a source, for instance—could be the basis for a nominal aiding and abetting, accessory after the fact, conspiracy, or other “inchoate” legal theory, if the source is engaged in any criminal activity.
The most notable law that by its terms could apply to journalism is a section of the Espionage Act of 1917, 18 U.S.C. § 793(e), which provides that anyone with unauthorized access to what is known as national defense information (information related to the national defense that is closely held) who transmits it to someone else without authorization to receive it, or willfully retains said information and fails to transmit it to a U.S. official entitled to receive it, violates the law.
In other words, the acts of leaking to the press, the receipt of a leak by the press, the willful retention of leaked information, and any reporting based on leaked national defense information (NDI) are all technically federal crimes. There is also § 793(d), which covers persons with authorized access to NDI who transmit it to unauthorized individuals and could be the basis for a conspiracy charge against a journalist who asks for NDI.
Though the Justice Department has never charged a U.S. reporter with violations of the Espionage Act, historically it has viewed the statute as covering journalistic activities. And it has, in two cases, charged non-reporters who were not government officials with violating the Espionage Act for the transmission of leaked classified information they had never taken an oath to protect. Further, it is hard to distinguish the core activity charged in one of these cases from the sort of newsgathering activity journalists engage in regularly. That case is the prosecution in the mid-2000s of two officials of the American-Israel Public Affairs Committee, which the Justice Department dropped after court rulings that would have raised its evidentiary burden at trial. (The other case is Tony Russo, who helped Daniel Ellsberg photocopy the Pentagon Papers and was charged alongside him for violating the Espionage Act, among other counts.)
Similarly, the conversion of government property statute, 18 U.S.C. § 641, provides that anyone who “receives, conceals, or retains” government records or a “thing of value,” with the intent to convert it to their use or gain, and knowing the material has been stolen, violates the law. In other words, receiving and reporting on NDI could be read to violate the statute. (For a comprehensive review of which laws have been used to prosecute journalistic sources for national security leaks, see the Reporters Committee’s survey of federal media leak cases.)
With that background in mind, here is how the guidelines draw the bright line around protected newsgathering. First, they define newsgathering as “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.” (Emphasis added.)
Second, the definition states that newsgathering “includes the mere receipt, possession, or publication by a member of the news media of Government information, including classified information, as well as establishing a means of receiving such information, including from an anonymous or confidential source.” (Emphasis added.)
This definition of protected newsgathering is significant in that, as noted above, the Justice Department has traditionally claimed that the provisions in the Espionage Act apply to journalists who receive, possess, or publish such secrets. And, with respect to the second clause about the means of receiving information, the Justice Department has routinely characterized efforts to protect journalistic source identities, such as the use of encrypted communications, as suspicious in media leak investigations and prosecutions. Now, though the department has not changed its longstanding position that the Espionage Act applies to reporters, none of that activity could form the basis for the use of subpoenas or other legal process for a journalist’s records given the new protections in the guidelines.
That said, it is crucial to note that the definition of newsgathering is qualified. The definition provides that “newsgathering does not include criminal acts committed in the course of obtaining information or using information, such as: breaking and entering; theft; unlawfully accessing a computer or computer system; unlawful surveillance or wiretapping; bribery; extortion; fraud; insider trading; or aiding or abetting or conspiring to engage in such criminal activities, with the requisite criminal intent.”
The guidelines then use this definition of newsgathering to draw the bright line. As explained below, journalists acting within the “scope of newsgathering” are within the bright-line bar on compulsory process, with exceptions only for authentication of published information, “friendly” process in which a journalist consents, and to “prevent an imminent or concrete risk of death or serious bodily harm.” The latter includes terrorist acts, kidnappings, specified offenses against a minor, and the incapacitation or destruction of critical infrastructure. (This “exigency” exception removes a broad national security carve-out that had been in the previous regulation.) Notably, the “scope of newsgathering” formulation may be narrower than the phrasing in the supplanted guidelines, which, in several provisions, referred to activity occurring “in the course of, or arising out of, newsgathering activities.”
To explore how the “scope of newsgathering” protections could operate in practice, it may be helpful to consider a hypothetical scenario.
A journalist has evidence that a public official may have a serious conflict of interest with respect to pending legislation. Say the politician has, through a shell company, a secret financial stake in a city contract that the politician will vote on. The journalist not only seeks comment from the politician, but says that, if the politician votes to authorize the contract, the journalist will disclose the politician’s secret windfall in the ultimate story.
For the sake of argument, the proverbial Inspector Javert comes along and concludes that this fact pattern could fit under the federal blackmail (18 U.S.C. § 873) or extortion (18 U.S.C. § 875(d)) statutes and wants to investigate whether the journalist sought money from the politician. He would like to seek telephone toll records subpoenas and court orders for electronic metadata under 18 U.S.C. § 2703(d).
Under the previous guidelines, the “decision tree” would look something like this:
- Are the records those of a member of the news media? Yes. (If there is any doubt on this question, the prosecutor must consult with the Criminal Division.)
- Then: Is the reporter the “subject of target of an investigation relating to an offense committed in the course of, or arising out of, newsgathering activities”? If the member of the department determines this is so, that question is elevated to the attorney general, who makes the final determination. And, if the attorney general concurs, she need only consider the hortatory preamble in the guidelines and may authorize the subpoenas and court orders if she determines that the investigative need outweighs free press equities.
- Note that the other two key checks in the guidelines—advance notice or notice within a maximum of 90 days to the affected journalist, and making all reasonable efforts to obtain the records from a non-media source—do not apply in this case. Notice is permissive but may be delayed indefinitely.
Under the current guidelines, we believe the tree would look like this:
- Are the records those of a member of the news media? Yes. If there is doubt on this question, the determination of such status must be approved by the assistant attorney general for the Criminal Division.
- Next, is the member of the news media acting “within the scope of newsgathering”? Under the revised guidelines, this becomes the most important question in the analysis.
- First, as noted above, the guidelines define newsgathering as 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.” To most journalists, the fact pattern here would clearly be within the scope of newsgathering, since the journalist is seeking information that is in the public interest and is seeking comment from one’s subject, a best practice.
- However, the definition of newsgathering also explicitly says that “criminal acts committed in the course of obtaining information or using information, such as ... extortion” are not newsgathering.
- Those two provisions in the definition thus set up a thorny issue: Is asking a subject for comment while previewing that the subject’s actions could influence how the ultimate story comes out “extortion”?
- Accordingly, the revised guidelines set up a new procedure to resolve this “close or novel” question to determine whether process is permitted. When there is a close or novel question regarding whether a journalist is acting “within the scope of newsgathering,” it is elevated to the assistant attorney general for the Criminal Division. When the assistant attorney general finds there is “genuine uncertainty,” the decision is elevated to the attorney general.
This is where the rubber meets the road. Assuming this is a close or novel question with “genuine uncertainty,” the attorney general is the official who decides where to draw the bright line. If the activity is within the scope of newsgathering, process is barred completely (unless the narrow exceptions in § 50.10(c) apply). If the activity is not within the scope of newsgathering, and the journalist is the subject or target of an investigation, and suspected of committing an offense, the journalist is then subject to process under § 50.10(d)(1)(i) of the guidelines. (Remember this “(d)(1)(i)” exception, as it will come up again.)
In sum, what had previously been a balancing approach becomes a binary analysis where the critical question, one that must be resolved by the attorney general in unusual cases like the hypothetical above, is whether conduct is within the scope of newsgathering.
Finally, what about when there is uncertainty on whether someone is a “member of the news media”? The policy does not define who qualifies for that status, which has been questioned by some, most notably the Knight First Amendment Institute at Columbia University.
Even absent a definition in the guidelines, most nontraditional newsgatherers—like “Substackers and citizen journalists,” as KFIA puts it—are likely to be covered under the revised guidelines. That is, as KFIA notes, we know that the department already applies a multifactor test that looks in part to the function being performed, as opposed to one’s employment, and that may be expressly included in a revised Justice Manual.
Further, in addition to close or novel questions about whether an individual is acting within the scope of newsgathering, close or novel questions about whether they are a member of the news media are also subject to approval by the assistant attorney general for the Criminal Division. To be sure, this is not as searching a review as the “scope of newsgathering” inquiry, which, when there is “genuine uncertainty,” goes to the attorney general. That said, a review of more than 10 years of annual Media Policy Reports suggests that the department tends to err on the side of overinclusion with respect to who it considers a member of the news media.
In 2015, for instance, the department applied the policy to the search of a safe deposit box held in the name of an entity describing itself as a “media platform,” despite having no indication that the businessman and assistant connected to the box had engaged in any newsgathering activities. In 2016, the department applied the policy to an internet radio host who had allegedly planned and participated in the occupation of federal lands to resist efforts by the Department of Interior to remove cattle belonging to Cliven Bundy. In 2018, in a case matching the facts of this report, a self-described journalist who was arrested for confronting Interior Secretary Ryan Zinke and his aide after a congressional hearing had the policy applied retroactively, as the U.S. attorney’s office sought authorization “nunc pro tunc”—“now for then”—from the Criminal Division, which blessed it after the fact. The reports also show the policy routinely being applied to freelance journalists.
Exclusions and Exceptions
It is important to separate “exclusions” in the guidelines from “exceptions” and then to distinguish between two categories of the latter. “Exclusions” are categorically exempt from the guidelines, meaning the guidelines do not apply at all. These exclusions lean toward preserving national security interests: Various shades of foreign power, agents of a foreign power, or persons or entities affiliated with terrorist organizations are not protected by the guidelines. Notably, the determination that an exclusion applies must be made by the assistant attorney general for national security. In other words, even if the guidelines simply do not apply—to, for instance, a foreign agent undercover as a journalist in the United States—there is still some high-level review before that determination is made.
We can group the “exceptions” into two buckets: one involving protected “newsgathering” and one not. For the former, the exceptions are narrow. That is, under the new guidelines, compulsory process “for the purpose of obtaining information from or records of a member of the news media acting within the scope of newsgathering is prohibited” (emphasis added) except when used to:
- Authenticate for evidentiary purposes information or records that have already been published. Prosecutors must obtain the authorization of a deputy assistant attorney general for the Criminal Division in such a case. (As noted above, this exception was invoked by the U.S. Attorney’s Office in Massachusetts to force Boston Globe reporter Joshua Miller to testify in a 2022 bribery case involving the former Harvard fencing coach.)
- Obtain information or records after a member of the news media agrees or consents, in which case approval by a deputy assistant attorney general is also required.
- And, with attorney general approval, prevent an imminent or concrete risk of death or serious bodily harm, including terrorist acts, kidnapping, specified offenses against a minor, or incapacitation or destruction of critical infrastructure. (Note that this (c)(3) “imminent and concrete” risk language is referenced throughout the regulations, in different contexts, and we refer to it as the “(c)(3)” risks or the “imminent and concrete” risks for shorthand.)
Importantly, section (d) governs process for members of the news media not acting within the scope of newsgathering. In such cases, a different set of exceptions applies (the most important, and potentially concerning, of which is the first).
Under section (d), process is prohibited except when:
- The member of the news media is the subject or target of an investigation and is “suspected of having committed an offense.” (See § 50.10(d)(1)(i).) The “suspected of having committed an offense” qualifier, which is new language, appears to be an extra brake so that in cases where a journalist may be a nominal “subject,” but where the department is not really contemplating charges, compulsory process should not proceed. But, coupled with the qualifier for certain types of criminal activity in the definition of newsgathering in section (b), this is the provision where concerns about future overreach under a conspiracy, aiding and abetting, or other inchoate theory would be most acute. Going forward, if journalists are subject to process because they themselves are suspected of criminal activity not within the scope of newsgathering, that will be the (d)(1)(i) exception. The allegations in the recent case of James Gordon Meek—whose house was raided by the FBI in spring 2022 and who was arrested and charged earlier this year with the transportation of child sexual abuse material—would likely support a (d)(1)(i) exception, for instance.
- Used to obtain information when the member of the news media shares a physical space, device, or account with a non-media subject or target.
- Used to obtain purely commercial, financial, administrative, technical, or other information or records not related to newsgathering; or information or records relating to non-newsgathering personnel.
- Used to obtain information or records related to, for instance, reader comments or other content over which the member of the news media does not exercise editorial control prior to publication.
- Used to obtain information or records of a member of the news media who may be a victim or witness to crime, or whose premises may be the scene of a crime, when such status is not based on or within the scope of newsgathering.
- Or, used to obtain basic subscriber information from an electronic communications service provider, such as name, address, session information, length of service, telephone or instrument number (including IP addressing information), and payment information.
In all but two of these exceptions, authorization must be obtained by a deputy assistant attorney general at the Criminal Division. That is, when a member of the news media consents, process can be authorized by a U.S. attorney or assistant attorney general for the matter. And, crucially, when the department seeks a search warrant for “the premises of a news media entity” under this section, full attorney general approval is required. Those searches would also be subject to the limitations in the Privacy Protection Act of 1980. (See 42 U.S.C. § 2000aa–2000aa-7.)
Checks Against Overreach
Every iteration of the guidelines has included some version of three types of procedural checks to prevent improper records demands. The most important has been notice to the affected member of the news media or journalist, which permits either negotiation over the scope of the demand or the opportunity to challenge a demand. If notice is delayed, the “bell has rung”—the department has already received the records sought—and there’s not much an affected journalist can do. (For that reason, reforms to the guidelines under Attorney General Eric Holder in 2014 and 2015 flipped an earlier presumption against advance notice to a presumption in favor of advance notice that could be overcome only on a determination by the attorney general that certain harms would result were notice provided.)
The other checks are high-level approval of sensitive investigative steps and some form of “exhaustion,” where authorities must take all reasonable steps to secure the information sought from a non-media source.
All three of these procedural checks—notice, high-level approval, and exhaustion—are in the revised policy, but they look a bit different because of the bright-line framework.
Advance notice within the scope of newsgathering. Recall that there are three narrow exceptions when the conduct of the member of the news media is deemed “within the scope of newsgathering”: authentication, consent, or an “imminent and concrete” risk of death or harm. In cases where notice would not occur because the process is not served on the reporter (for instance, seeking to authenticate public material by issuing a subpoena to a third party), notice must be given unless the authorizing official, for compelling reasons, determines that advance notice would pose the same risks described in § (c)(3). In other words, our understanding is that in those narrow emergency situations, the attorney general could authorize process without notice—but that is the only time that process could occur without notice.
Advance notice not within the scope of newsgathering. Here things get more complicated, but there are still helpful notice requirements in most cases, even when compulsory process is unconnected to conduct within the scope of newsgathering.
First, when a member of the news media not acting within the scope of newsgathering is the subject or target of the investigation and is “suspected of having committed an offense”—under that important (d)(1)(i) exception—the revised guidelines retain the notice approach from the Holder revisions for offenses that do not “arise” out of newsgathering. This is confusing, but, as explained below, it reflects the fact that, unless an “exclusion” applies, virtually all conduct by a member of the news media is subject to some protection. Under the 2015 Holder guidelines, conduct not “arising” out of newsgathering would not have been covered at all.
In any event, the rule with a (d)(1)(i) exception is that notice is not required, but the authorizing official may nevertheless direct that notice be provided and, if the authorizing official decides not to do so, they have to notify the deputy attorney general and the department officials responsible for the matter must update the authorizing official on the status of the matter every 90 days.
Put concretely, if the department is investigating a member of the news media for, say, bank robbery (or another crime that by its nature is outside of the scope of newsgathering), notice is permissive, the deputy attorney general must be notified if notice is not given, and the investigative team must update the authorizing official every 90 days on case status.
To place a finer point on this change to the guidelines, under the previous version, even with the broader “committed in the course of, or arising out of, newsgathering” formulation, ordinary bank robbery would not be covered by the guidelines at all, meaning notice could be delayed indefinitely without any check on overreach. Now, garden-variety crime is still covered. Even if a line prosecutor suspects that a member of the news media is moonlighting as a bank robber, if the authorizing official decides to forgo notice, the deputy attorney general must be notified of the matter and the authorizing official must be updated every 90 days. (To be sure, notification could still be delayed indefinitely in a (d)(1)(i) case, even if the guidelines apply.)
Interestingly, that shift is reflected in revisions to the statement of principles in section (a) of the policy. The earlier guidelines stated, “The policy is not intended to extend special protections to members of the news media who are subjects or targets of criminal investigations for conduct not based on, or within the scope of, newsgathering activities.” The new policy confirms that it applies, stating, “The policy is not intended to shield from accountability members of the news media who are subjects or targets of a criminal investigation for conduct outside the scope of newsgathering.”
For all of the other § 50.10(d) exceptions (for instance, non-newsgathering personnel, user comments, purely technical information, etc.), the revised guidelines retain the notice requirement from the previous version of the guidelines, with certain improvements. That is, notice must be given unless the authorizing official—after informing the deputy attorney general—determines that it would pose a clear and substantial threat to the integrity of the investigation or would pose the same imminent and concrete risks of harm outlined in the emergency exception under § 50.10(c)(3).
Importantly, the previous version of the guidelines permitted delayed notice if advance disclosure of the process at issue to the affected member of the news media would “risk grave harm to national security.” The revised guidelines do away with this exception, which had been widely criticized as overbroad.
For all but the journalist “suspected of having committed an offense” cases under the (d)(1)(i) exception, the revised guidelines also retain a crucially important provision. Under most forms of third-party process—especially for electronic communications content and metadata—existing law permits the government to delay notifying an affected person indefinitely. The previous version of the guidelines ensured that journalists would be notified at some point through a 90-day “hard backstop.” That is, even if notice is delayed, it can be delayed only for an initial 45-day period and then, with another determination of cause, for one more 45-day period. With all but a (d)(1)(i) case, that hard backstop continues to apply. (But see the section on “Miscellany” below for a slight qualification here in terms of what triggers the 90-day clock.)
In sum, when a member of the news media not acting within the scope of newsgathering is suspected of an offense, notice is not required but may be given, and the deputy attorney general must be informed of the compulsory process if notice is not given. In all other cases on the “not within the scope” side of the newsgathering line, the notice provisions are the same as the earlier version but without the broad national security exception.
High-level approval within the scope of newsgathering. For compulsory process governed by the narrow exceptions under § 50.10(c), the approval framework is straightforward. Process for authentication must be authorized by a deputy assistant attorney general. Consent process is governed by § 50.10(i), which covers voluntary questioning, meaning that members of the news media not suspected of a crime may be questioned with the approval of the U.S. attorney or assistant attorney general responsible for the matter, and members suspected of a crime may be questioned with deputy assistant attorney general approval.
Process to prevent “imminent and concrete risk” of certain harms must be authorized by the attorney general under § 50.10(c)(3), but a deputy assistant attorney general may authorize process in exigent circumstances when the same risks as (c)(3) are present and attorney general or deputy attorney general approval cannot be obtained with due diligence. § 50.10(l)(1). As soon as possible after such an approval, the deputy assistant attorney general must then notify the attorney general and the deputy attorney general.
High-level approval not within the scope of newsgathering. All the scenarios not within the scope of newsgathering and thus covered under § (d) (for instance, the (d)(1)(i) journalist-as-suspect exception, process against non-newsgathering personnel, subscriber information, user comments, etc.) require deputy assistant attorney general approval, except that voluntary process is governed by the same rules as voluntary questioning under the guidelines, and search warrants for the premises of a news media entity require attorney general approval.
Although the level of approval differs in certain cases from the previous guidelines, there are two additional checks in the revised policy. As noted above, if there is a close or novel question about whether an individual or entity is a member of the news media, that must be resolved by the assistant attorney general for the Criminal Division. Second, when there is a close or novel question about whether a member of the news media is acting within the scope of newsgathering, that determination must also be made by the assistant attorney general for the Criminal Division. But, if the assistant attorney general finds “genuine uncertainty” on the question, it goes to the attorney general.
The exhaustion requirement works the same regardless of whether the scenario involves activity within the scope of newsgathering or not, with one important caveat: In most cases, the government must have “exhausted all reasonable avenues to obtain the information from alternative non-media sources;” must have pursued negotiations in advance with the affected member of the news media, unless the authorizing official determines that “imminent and concrete risks” are present; and must ensure the process is narrowly drawn.
There are two exceptions to this requirement. The exhaustion provision does not apply when the member of the news media is “the subject or target of the investigation and suspected of an offense” (meaning process authorized under the (d)(1)(i) exception). It also does not apply for process under the exigency provision laid out in the guidelines. But the exhaustion conditions may still be imposed as appropriate.
Miscellany in the Guidelines
The new policy features several other bells and whistles, and we expect that the department will provide additional guidance when it next updates the Justice Manual. It is worth noting, however, a few miscellaneous provisions.
Anti-circumvention. The revised guidelines include an interesting, and welcome, new section, stating that members of the department may not direct any third party to take any action that would violate the guidelines if taken by the Justice Department. (See § 50.10(r).) Concerns have been raised in the past that, for instance, the FBI may have been aware of improper questioning of a reporter by a Customs and Border Protection agent.
Non-disclosure orders. The revised guidelines also include a new provision governing non-disclosure or “gag” orders that prohibit third parties from notifying subscribers that their records have been sought. In the Trump-era records seizures, both CNN and the New York Times were subject to such gags in a manner that prevented the in-house lawyers from notifying their colleagues in the newsroom that the government had sought the production of reporters’ email records. The new guidance on gag orders follows the same framework as the rest of the policy.
For cases involving the (c)(3) risks, the authorizing official—who we understand to be the attorney general—must determine that the gag is necessary to prevent those harms. § 50.10(k)(2). For non-newsgathering process under § 50.10(d)(ii)-(vi), a gag is available if the (c)(3) risks are present or if notification would pose a clear and substantial threat to the investigation. § 50.10(k)(3). And, for process under the (d)(1)(i) exception, the department need only comply with existing statutes and policies governing non-disclosure orders. § 50.10(k)(4).
Trigger for 90-day clock. As noted above, when process is still permitted under the revised guidelines, the department must, in most cases, provide advance notice. When notice can be delayed, it must be given—save for the (d)(1)(i) exception—within a maximum of 90 days (one 45-day delay and one more on an additional determination of need). Under the previous guidelines, the 90-day clock would start to run after “any return” from the relevant process. When we dove deep into the chronology of the Trump-era seizures, the timing didn’t add up, as prosecutors would have received telephone records many months before notice was finally provided. The revised guidelines appear to answer that question, making it clear that the clock starts to run after the “receipt of a complete return made pursuant to all forms of compulsory legal process included in the same authorizing official’s authorization.”
The revised guidelines have many changes that improve protections for the news media relative to the earlier revisions. The most notable is the recognition that, for the purposes of the policy, the receipt, possession, and publication of classified information is within the scope of newsgathering and should not form the basis for snooping into the newsroom. In national security leak cases, that is a big deal. That said, the creation of the bright line makes the department’s determination of what constitutes “newsgathering” a potential font of future controversies. While the department should be applauded for the immense amount of work that it put into the revisions and the outcomes we are seeing under this attorney general, the simple fact that Congress has enacted so many laws that can be read to criminalize routine newsgathering means there is work ahead that only a federal shield statute can properly do to protect public interest journalism.
In another piece for Lawfare, we will consider in more detail tough edge cases where aggressive prosecutors could conceivably get around the strengthened policy by arguing that routine newsgathering tactics—like efforts to corroborate leaked national defense secrets—constitute a criminal conspiracy, aiding and abetting, or another “inchoate” offense.