Garland Tells Prosecutors Not to Seize Reporters’ Records

The new policy lays out some exceptions and had been expected since last month, when President Biden vowed not to let the department seize reporters’ phone and email records amid disclosures that it had done so late in the Trump administration.,

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Garland tells prosecutors not to seize reporters’ records.

Attorney General Merrick Garland arriving at a hearing of the Senate Appropriations Subcommittee on Commerce, Justice, Science, and Related Agencies in June in Washington.
Attorney General Merrick Garland arriving at a hearing of the Senate Appropriations Subcommittee on Commerce, Justice, Science, and Related Agencies in June in Washington.Credit…Pool photo by Stefani Reynolds
  • July 19, 2021, 12:27 p.m. ET

Attorney General Merrick Garland on Monday issued a broad ban on using subpoenas, warrants or court orders to seize reporters’ records from their employers or from communications firms in an effort to uncover their confidential sources in leak investigations, outlining sharp new limits on the practice.

“The Department of Justice 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,” Mr. Garland wrote to federal prosecutors in a three-page policy memo, adding that the department would also revise its regulations to reflect the new approach.

The memo, which also bans forcing reporters to testify about their sources or turn over their notes, said the Justice Department would support legislation to give greater protections to reporters’ information to better ensure that they hold under future administrations.

Mr. Garland’s memo laid out a set of exceptions. They included if a reporter is under investigation for an unrelated crime; if a reporter is suspected of committing a crime like “breaking and entering” to gather information; if the department is seeking to authenticate already published information — a situation that arises sometimes in television news broadcasts of footage that can be evidence of a crime; or if reporters themselves have been deemed to be agents of foreign power or members of foreign terrorist groups.

An exception will also apply in situations where seizing reporters’ records is deemed “necessary to prevent an imminent risk of death or serious bodily harm, including terrorist acts, kidnappings, specified offenses against a minor” or attacks that could incapacitate or destroy critical infrastructure, Mr. Garland wrote.

The memo has been expected since last month, when President Biden vowed not to let the department seize reporters’ phone and email records amid disclosures that it had done so late in the Trump administration in cases involving The New York Times, The Washington Post and CNN. Mr. Garland has embraced the idea of a new policy in meetings with newsroom leaders.

The phrasing of the memo suggested an answer to one open question: whether the policy would protect reporters’ records in situations in which their source is suspected of being an outside hacker who stole information, as opposed to a government insider who leaked it.

Based on its wording, a reporter’s records would apparently still be protected from seizure in that circumstance. The memo said the prohibition would apply whenever “a member of the news media has, in the course of newsgathering, only possessed or published government information, including classified information.”

The new limits apply only to reporters’ records. Mr. Garland noted that the government would still be able to seize records of officials who are suspected of being the source of unauthorized disclosures.

In his memo, Mr. Garland noted that the Justice Department had previously operated under a “balancing test” that included some procedural limits on when prosecutors could seize reporters’ records, and required senior officials to weigh the interest in protecting a free flow of information to the press against the interest in gathering evidence that could solve crimes.

The attorney general wrote, however, that there were “shortcomings” to that approach and that the new policy was intended to better protect journalists’ ability to do their jobs.

“The United States has, of course, an important national interest in protecting national security information against unauthorized disclosure,” he wrote. “But a balancing test may fail to properly weight the important national interest in protecting journalists from compelled disclosure of information revealing their sources, sources they need to apprise the American people of the workings of their government.”

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