The Department of Justice has finalized the regulations for its policy toward the news media, including new guidelines for obtaining private information and questioning, arresting or charging journalists.
The new regulations, which were forwarded to POLITICO and will be published on the Federal Register website, resulted from revelations early last year that the DOJ had subpoenaed the phone records of Associated Press reporters and labeled Fox News reporter James Rosen a co-conspirator in separate leak investigations.
In the leak probe of the AP story, former FBI explosives expert Donald Sachtleben later pleaded guilty to possessing and disclosing classified information. The investigation of the Fox story resulted in State Department expert on North Korea Stephen Kim pleading guilty to passing classified information to a journalist.
Among the notable changes:
- Without notice to the Director of the Office of Public Affairs and the express authorization of the Attorney General, Department officials cannot subject a member of the news media to questioning, seek a warrant, or present information to a grand jury for any suspected offense that took place while the journalist was “engaged in the performance of his official duties as a member of the news media.”
- The DOJ must give “reasonable and timely notice” to media organizations or journalists prior to the use of a subpoena, court order or warrant, unless it would threaten the investigation in question.
Jane Kirtley, a University of Minnesota professor of media ethics and the law who speaks often on First Amendment issues, said she was troubled that there remain instances under the new rules in which the government might not notify news organizations of plans to obtain records, such as when the government believes notice would threaten national security.
“It seems that in times of crisis, there’s a tendency to see everything as a major national security breach,” she said. “Obviously the intelligence community is always going to represent security breaches as a big deal. My question is, are they all created equal? Do they all rise to the level of severity to justify what I see as an intrusion into press independence?”
The rule says that the attorney general may authorize subpoenas to members of the news media when the director of national intelligence certifies the significance of harm from a leak of classified information.
The current DNI, James Clapper, has weighed in strongly against the media in the Edward Snowden controversy, repeatedly referring to reporters who received stolen documents from Snowden as “accomplices.”
AP President and CEO Gary Pruitt Statement:
“These new regulations should provide significantly greater protection for journalists,” Pruitt said. “This is important as the regulations, more so than the courts, traditionally have provided the bulwark of protection for journalists from the reach of federal prosecutors. We are hopeful that these regulations will be enforced as intended and that Congress will pass a federal shield law to further protect journalists.”
— Michael A. Scarcella (@MikeScarcella) February 21, 2014