New DOJ Policy Bars Prosecutors From Obtaining Journalists’ Records

U.S. Attorney General Merrick Garland on Monday announced a new Justice Department policy that prohibits federal prosecutors from seizing journalists’ phone and email records in leak investigations.

This comes on the heels of a Biden administration decision that the U.S. government will discontinue a highly controversial practice of using subpoenas and secret orders for reporters’ communications data to track down government leakers.

“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,” Garland wrote in a widely-anticipated memo to his department’s leadership and federal prosecutors.

The policy announcement means the Justice Department will no longer issue subpoenas, warrants and court orders to reporters, their publishers and third-party service providers to obtain the journalists’ records.

There will be exceptions, however. The ban does not apply to obtaining information about a journalist who is under criminal investigation or a journalist who has “used criminal methods” to acquire information, Garland wrote in the three-page statement.

“The prohibition does apply when a member of the news media has, in the course of newsgathering, only possessed or published government information, including classified information,” Garland said.

The announcement comes two months after the Justice Department informed reporters from the Washington Post, New York Times and CNN that the department under former President Donald Trump secretly obtained their phone and email records. As part of a leak investigation, the Justice Department reportedly subpoenaed Apple for the records of two Democratic members of Congress, their aides and family members.

The revelations caused outrage among journalists and press freedom advocates and prompted the Justice Department’s inspector general to open a review of the seizures. Garland promised to change the department’s policy on obtaining journalists’ records and voiced support for legislation to make safeguards permanent.

Last month, the attorney general met with executives from the three news organizations and pledged to announce a new policy on the issue. At a news conference last month, Garland said “the only way to make [the policy] permanently durable is through legislation, and I personally will support working with Congress to develop legislation that would make protections for obtaining the press’ records part of the legislation.”

In his memo, Garland said he had asked his deputy, Lisa Monaco, to review existing Justice Department rules on obtaining journalists’ records and to “codify the…protections in regulations.” He also reiterated his support for congressional action “to protect members of the news media.”

Press freedom advocates praised the new policy.

“The attorney general has taken a necessary and momentous step to protect press freedom at a critical time,” Bruce Brown, executive director of Reporters Committee for Freedom of the Press, said in a statement. “This historic new policy will ensure that journalists can do their job of informing the public without fear of federal government intrusion into their relationships with confidential sources.”

On Twitter, Freedom of the Press Foundation urged Congress to “immediately codify these rules so they have the force of law.”