In May 2013, at the President's direction, the Attorney General initiated a comprehensive evaluation of the Department of Justice's policies and practices governing the use of law enforcement tools, including subpoenas, court orders, and search warrants, to obtain information or records from or concerning memmbers of the news media in criminal and civil investigations. As part of this process, the Attorney General 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 Attorney General is making significant revisions to the Department's policies regarding investigations that involve members of the news media.
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As an initial matter, it bears emphasis that it has been and remains the Department's policy that members of the news media will not be subject to prosecution based solely on news-gathering activities. Furthermore, in light of the importance of the constitutionally protected news-gathering process, the Department views the use of tools to seek evidence from or involving the news media as an extraordinary measure. The Department's policy is to utilize such tools only as a last resort, after all reasonable alternative investigative steps have been taken, and when the information sought is essential to a successful investigation or prosecution.
I. "Advance Notice" Presumption
Current policy provides that negotiations with the news media should occur in cases where the "responsible Assistant Attorney General determines that such negotiations would not pose a substantial threat to the integrity of the investigation," a determination that is then "reviewed by" the Attorney General when considering issuance of a subpoena to a third party for news media records.
Under new policy, the presumption of advance notice will be overcome only if the Attorney General affirmatively determines, taking into account recommendations from the newly established News Media 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 d**h or serious bodily harm.
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II. Heightened Standards for Use of Search Warrants
The Privacy Protection Act of 1980, generally prohibits the search or seizure of work product and documentary materials held by individuals who have a purpose to disseminate information to the public. The PPA, however, contains a number of exceptions to its general prohibition, including the "suspect exception" which applies when there is "probable cause to believe that the person possessing such materials has committed or is committing a criminal offense to which the materials relate," including "the receipt, possession, or communication of information relating to the national defense, cla**ified information, or restricted data". Under current Department policy, a Deputy Assistant Attorney General may authorize an application for a search warrant that is covered by the PPA, and no higher level reviews or approvals are required.
First, the Department will modify its policy concerning search warrants covered by the PPA involving members of the news media to provide that work product materials and other documents may be sought under the "suspect exception" of the PPA only when the member of the news media is the focus of a criminal investigation for conduct not connected to ordinary news-gathering activities. Under this revised policy, the Department would not seek search warrants under the PPA's suspect exception if the sole purpose is the investigation of a person other than the member of the news media.
Second, the Department would revise current policy to elevate the current approval requirements and require the approval of the Attorney General for all search warrants and court orders issued pursuant to 18 U.S.C. §2703(d) directed at members of the news media.
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III. Establishment of News Media Review Committee
The Department will create a standing News Media Review Committee, akin to its Capital Case Review Committee and State Secrets Review Committee, to advise the Attorney General and Deputy Attorney General when Department attorneys request authorization to seek media-related records in investigations into the unauthorized disclosure of information; when Department attorneys request authorization to seek media-related records in any law enforcement investigation without providing prior notice to the relevant member of the media; and when Department attorneys request authorization to seek testimony from a member of the media that would disclose the identity of a confidential source. The News Media Review Committee will include senior Department officials, including but not limited to the Department's Director of the Office of Public Affairs and the Department's Chief Privacy and Civil Liberties Officer.
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IV. Centralization of Review and Public Reporting Requirements
To ensure consistency in the evaluation of requests for authorization to use legal process to obtain information from, or records of, members of the news media, the Department will require that all such requests be submitted to and initially evaluated by, the Criminal Division's Office of Enforcement Operations before they are ultimately forwarded to the Attorney General for decision.
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To further enhance oversight and to facilitate the Department's tracking of the outcome of the news media subpoenas, Department attorneys will be required to report to the Criminal Division's Office of Enforcement Operations whether an approved subpoena, [court order, or search warrant] was issued, served, or executed, and whether the affected member of the news media or recipient of the subpoena, [...] complied with or challenged the subpoena, [...] and the outcome of any such challenge.
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V. Intelligence Community Certification
In investigations of unauthorized disclosures of national defense information or of cla**ified information, under the Department's revised policy the Director of National Intelligence after consultation with the relevant Department or agency head, would certify to the Attorney General the significance of the harm that could have been caused by the unauthorized disclosure and reaffirm the intelligence community's continued support for the investigation and prosecution before the Attorney General authorizes the Department to seek media-related records in such investigations.
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