8/15/2023 0 Comments First amendment freedom of press![]() The Justice Department should tighten the guidelines to address these issues. It does not include the various surveillance authorities of the Foreign Intelligence Surveillance Act, for example, and it is unclear whether it extends to national security letters. Though the department expanded the scope of this phrase in the revised regulations, the definition still does not encompass all types of compulsory legal process that might be used against journalists to obtain sensitive information. But the level of discretion such a system affords the agency, coupled with the Justice Department’s lack of transparency about the determinations it makes, is cause for concern.Īnother area in need of improvement is the Justice Department’s definition of compulsory legal process. As we’ve written before, a multifactor test is not inherently bad, and could give the agency flexibility to include within the policy individuals and entities that a more formal definition would exclude. According to a 2016 record the Institute and the Freedom of the Press Foundation obtained through a Freedom of Information Act request, the Justice Department decides who qualifies for protection by considering a dozen different factors, ranging from the individual’s employer to the kind of content they produce. This is especially so because, though the regulations state who within the Justice Department is responsible for determining whether someone is a member of the news media, the regulations do not specify the criteria they will use to make that decision. But others-Substackers, citizen journalists-will be left wondering. This omission will be less of an issue for members of traditional news media organizations journalists at The New York Times and The Washington Post can be confident that they are protected. Perhaps most significantly, they fail to define the phrase “member of the news media,” although that term determines who qualifies for the regulations’ protections. That said, the regulations aren’t perfect. They will allow reporters more space to do the work that the public needs them to do. ![]() While the new regulations do not explicitly rule out the possibility that the Justice Department will exclude journalists engaged in this activity from protection, the use of the word “pursuing” suggests that the new regulations may encompass this aspect of newsgathering. The policy memo left room for the Justice Department to exclude from protection any journalists who seek out classified information from their sources, on the theory that they are “soliciting” classified information in violation of the Espionage Act. While the policy memo protected members of the news media from compulsory process if they had done nothing more than possess or publish information (whether unclassified or classified), the regulations also protect the pursuit of information. ![]() The regulations also protect a broader universe of “newsgathering” activities. ![]() § 2518, and requests for communications data and other assistance made under mutual legal assistance treaties. § 2703(d) and § 3123, and civil investigative demands the new regulations also prohibit wire, oral, and electronic communication surveillance orders issued pursuant to 18 U.S.C. The 2021 policy barred the use of subpoenas, warrants, court orders issued pursuant to 18 U.S.C. The agency also expanded the list of legal tools the Justice Department is prohibited from using to target reporters. ![]() To start, the Justice Department incorporated the ban on the use of certain types of compulsory legal process to obtain information from members of the news media into its regulations, with only limited exceptions. But, as the Knight Institute noted at the time, much would turn on how the Justice Department revised its regulations and whether it filled in some troubling gaps.Ī year and change later, the results are in-and they’re largely positive. The attorney general’s commitment was a significant victory for press freedom. Following the public outcry, Attorney General Merrick Garland issued a memorandum in July 2021 largely prohibiting the use of “compulsory legal process” to obtain journalists’ records and promising to “further explain, develop, and codify” these protections in regulations. These regulations were a long time in the making, prompted by the backlash to revelations that the Justice Department had, in the waning days of the Trump administration, secretly seized the phone and email records of reporters at CNN, The Washington Post, and The New York Times. On October 26, the Department of Justice formally revised its regulations setting out when it may obtain information from or records of members of the news media, including from third-party service providers. Deep Dive New DOJ Regulations Are a Victory for Press Freedom, But More Work Remains ![]()
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