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White House press briefing

White House Press Secretary Jen Psaki takes questions during a daily briefing at the James Brady Press Briefing Room of the White House July 6, 2021 in Washington, D.C. (Photo: Alex Wong/Getty Images)

Pushed By Press Freedom Advocates, Garland Limits DOJ's Ability to Seize Reporters' Phone Records

"Reporters should not fear government prosecution simply for doing their jobs."

Julia Conley

In a move that press freedom advocates said would "ensure journalists can do their job of informing the public without fear of federal government intrusion," the U.S. Department of Justice on Monday announced new rules limiting federal prosecutors' ability to secretly seize journalists' phone and email records, which were expanded under the Obama and Trump administrations as the government sought to crack down on leaks.

In a memo, Attorney General Merrick Garland wrote that the DOJ "will no longer use compulsory legal process for the purpose of obtaining information from or records of members of the news media acting within the scope of newsgathering activities."
 

"Attorney General Garland has taken an important step towards protecting journalists and their First Amendment rights."
—Claire Finkelstein, Center for Ethics and the Rule of Law

The new rules revise the "balancing test" used by federal prosecutors who want to find out who reporters' sources are; previously, the DOJ has pursued unauthorized disclosures of who reporters spoke to via phone or email—but not the content of the discussions—if they could make the argument that doing so was in the interest of national security.
 
Prosecutors have been able to seek reporters' phone and email records without alerting news organizations if they believed telling the outlet that doing so could impede the investigation. 
 
Such balancing tests "may fail to properly weigh the important national interest in protecting journalists from compelled disclosure of their sources—sources they need to apprise the American people of the workings of their government," Garland said in the memo.
 
For that reason, the attorney general released new rules stating the DOJ can only seek journalists' phone and email records only if the reporter is under investigation for activities "not based on or within the scope of newsgathering," or is suspected of being "an agent of a foreign power or a member of a foreign terrorist organization."
 
Exceptions can also be made when seizure of a reporter's records is deemed "necessary to prevent an imminent risk of death or serious bodily harm," the DOJ memo reads.
 
The Reporters Committee for Freedom of the Press called the new limits on federal prosecutors "a necessary and momentous step to protect press freedom at a critical time."
 
"The memo explicitly addresses the failure of the longstanding balancing test in the guidelines, which required the Justice Department to weigh investigative interests against press freedom," said Bruce D. Brown, executive director of the group, which gave credit for the new limits to the Reporters Committee and other free press advocates.
 
"During meetings on June 14 and 28, Garland, Brown, and news organization leaders agreed that the Justice Department needed to implement 'strong, durable rules' that would prevent government attorneys from obtaining journalists’ records in the course of federal investigations," the Reporters Committee said.
 
Garland's announcement came weeks after the DOJ said that during the Trump administration, the department had secretly obtained the phone records of three Washington Post reporters, CNN's Pentagon correspondent, and four journalists at the New York Times, reportedly under the rules put in place by the Obama administration. 
 
"Attorney General Garland has taken an important step towards protecting journalists and their First Amendment rights," said Claire Finkelstein, a law professor at the Center for Ethics and the Rule of Law at the University of Pennsylvania.
 
Garland indicated in the memo that the DOJ "will support congressional legislation to embody protections" for journalists. 
 
Rep. Jamie Raskin (D-Md.) said the department's announcement was "the right call" regarding prosecutors' attempts to access reporters' private records, but that Congress must ensure the new protections stay in place after President Joe Biden leaves office.
 
"My bill with Sen. Ron Wyden, the PRESS Act, would make the attorney general's policy the law," Raskin said. "Reporters should not fear government prosecution simply for doing their jobs."
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