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New DOJ rules for ‘secret subpoenas’ against news media

The Department of Justice revised its procedures for obtaining documents from media outlets regarding leaks of classified material, promising to notify journalists beforehand of any requests for the documents.

The DOJ’s new regulations, published late Friday, make it manadatory that the agency provide notice of any impending demand for such documents, unless circumstances require otherwise.

The DOJ can refrain from providing advance notice only if the attorney general determines that doing so 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 death or serious bodily harm.”

The new rules also give news organizations an opportunity to challenge any subpoenas or search warrants they receive from the DOJ in federal court.

They further clarify that the DOJ should only apply for a search warrant to gain access to a journalist’s materials when that journalist is the focus of a criminal probe for conduct outside the scope of ordinary newsgathering.

Changes to the rules were prompted by the DOJ’s internal review of its news media policies in July 2013.

The agency admitted issuing secret subpoenas last year for almost two months of telephone records for more than 20 telephone lines used by reporters for the Associated Press

The AP had published details from classified documents about a CIA operation in Yemen that stopped an al-Qaeda plot to detonate a bomb on an airplane bound for the United States in spring 2012.

The subpoena covered several AP offices, including its general switchboard numbers and a shared fax line.

The DOJ last year also disclosed using secret search warrants to obtain emails from a Fox News journalist to someone the DOJ believed had classified documents relating to North Korea.

Several media organizations issued statements in response to Friday’s announcement by the DOJ.

Associated Press president and CEO Gary Pruitt said the news organization is still reviewing the new regulations but thinks the revisions are important “as the regulations, more so than the courts, traditionally have provided the bulwark of protection for journalists from the reach of federal prosecutors.”

The Newspaper Association of America said it believes a federal shield law is still needed to provide some protection for journalists and their confidential sources.

The Newspaper Association of America (Caroline H. Little, president and CEO):

In the wake of revelations that the Justice Department secretly subpoenaed Associated Press phone records and obtained e-mail content of a Fox News reporter, NAA applauds the attorney general’s recommendations. However, a federal shield law is still needed to protect journalists’ confidential sources and the public’s right to know.

– See more at: http://www.rcfp.org/attorney-general-guidelines#sthash.8ZSk5T3i.dpuf

In the wake of revelations that the Justice Department secretly subpoenaed Associated Press phone records and obtained e-mail content of a Fox News reporter, NAA applauds the attorney general’s recommendations. However, a federal shield law is still needed to protect journalists’ confidential sources and the public’s right to know. – See more at: http://www.rcfp.org/attorney-general-guidelines#sthash.8ZSk5T3i.dpuf

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Julie DiMauro is the executive editor of the FCPA Blog and can be reached here.

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