The Department of Justice on Friday issued new guidelines for seeking records related to newsgathering and those revisions include requiring notice of that collection, and negotiations with news media over that collection, unless that "would pose a clear and substantial threat" to the investigation.
It also modifies search warrant policies so that a journalist's work product cannot be sought under the "suspect" exception unless the journalist is the focus of the criminal investigation rather than for work product not connected to ordinary newsgathering activities. The Attorney General will now also have to approve any search warrants and court orders directed to members of the news media.
Previously, the presumption was that notice and negotiations would not occur unless DOJ determined that to do so "would not" post a substantial threat.
In essence, it makes the default setting notice to news media unless there is an affirmative showing that to do so would threaten the integrity of the investigation, risk grave harm to national security or pose an imminent risk to life and limb.
The fact that negotiations or notice could delay an investigation will not be sufficient cause for bypassing them.
"The presumption will ensure notice in all but the most exceptional cases," said Justice in issuing the new guidelines. "It is expected that only the rare case would present the Attorney General with the requisite compelling reasons to justify a delayed notification."
DOJ will also create a News Media Review Committee to advise the attorney general and deputy attorney general when DOJ attorneys seek "media-related" records.
DOJ was under orders from President Obama to review those policies after phone records were secretly collected from AP editors and reporters as part of a leak investigation. There were also concerns over reports that the Justice Department was investigating a Fox News reporter as a co-conspirator in the leak of classified info because he sought that information from a source.
DOJ says it will also step up protections for communications records obtained from news media.
It will also establish a News Media Dialogue Group that will meet six months after the revisions have been implemented and review their effect and effectiveness. That group will include members of the media.
"The Department of Justice is firmly committed to ensuring our nation's security, and protecting the American people, while at the same time safeguarding the freedom of the press," Attorney General Eric Holder said in a statement. "These revised guidelines will help ensure the proper balance is struck when pursuing investigations into unauthorized disclosures. While these reforms will make a meaningful difference, there are additional protections that only Congress can provide. For that reason, we continue to support the passage of media shield legislation. I look forward to working with leaders from both parties to achieve this goal, and am grateful to all of the journalists, free speech advocates, experts, and Administration leaders who have come together in recent weeks -- in good faith, and with mutual respect -- to guide and inform the changes we announce today."
The Newspaper Association of America applauded the changes, but agreed they were not enough.
"The attorney general's suggested revisions are a significant step in the right direction," NAA said in a statement. "But these changes alone will not prevent government overreach. A federal shield law would mandate review by independent federal judges of all requests for confidential source information. By passing a shield law, Congress would follow the wisdom of the 48 states and the District of Columbia in providing some protection for journalists and their confidential sources. Clear standards etched into law will preserve the role of the press in ensuring government accountability and the free flow of information to the public."
Free Press and dozens of other groups had weighed in in support of changes to better protect the media from government overreach.