Feds issuing new guidelines for seizing reporter records

Government will provide advance notice to organizations in most cases

WASHINGTON — The Justice Department issued new guidelines Friday aimed at bolstering government oversight when journalists’ records are sought for use in federal investigations.

The new rules, outlined in a 20-page document under the signature of Attor- ney General Eric Holder, promise that news organizations would be provided advance notice in most cases before the government sought records in leak inquiries and other investigations.

Holder’s action was prompted by disclosures last year that federal prosecutors had secretly obtained records from 21 telephone lines used by Associated Press journalists. In a separate investigation, prosecutors also acquired communications involving a Fox News reporter.

“The changes to the policy strengthen the presumption that department attorneys will negotiate with, and provide advance notice to, affected members of the news media when investigators seek to obtain communications records or business records related to ordinary newsgathering ac- tivities,” the rules state.

Only on the authorization of the attorney general or other designated senior Justice officials can a warrant or a subpoena be issued to obtain journalists’ records. Those journalists “shall be given reasonable and timely notice of the attorney general’s determination before the use of the subpoena, court order or warrant.”

The notice provision would not apply, according to the Justice document, in cases when the attorney general determines that the alert 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.”

In criminal cases, according to the guidelines, there should be “reasonable ground to believe that a crime has occurred and that the information being sought is essential to a successful investigation or prosecution.”

“The subpoena should not be used to obtain peripheral, non-essential or speculative information.”

In civil inquiries, the information should be “essential to the successful completion of the investigation or litigation in a case of substantial importance.”

“The government,” Holder’s directive states, “should have made all reasonable attempts to obtain the information from alternative, nonmedia sources.”