For years, the Department of Justice has used its bespoke "balancing process" to decide whether or not to target journalists during investigations of criminal acts or to hunt down the source of leaked documents. This was intended to make the DOJ take into consideration the impact on protected speech and press freedoms when issuing subpoenas targeting journalists. Far too frequently, the DOJ has told itself it's ok to collect journalists' phone and email records in hopes of identifying the actual targets of leak investigations.
With Donald Trump in the White House (a self-avowed enemy of the press) overseeing a short procession of suck-ups holding the title "Attorney General," the DOJ seemed to feel the balancing test was more of a suggestion than a rule and proceeded to attempt to acquire journalists' communications records to sniff out a multitude of leakers.
The first half of this year has been filled with news about journalists caught up in DOJ leak investigations. Freed of gag orders applied during the Trump years, multiple news organizations reported their employees' phone and email records had been subpoenaed by the DOJ.
There's a new President in town, along with a new attorney general. And both made statements claiming the DOJ would stop seeking journalists' records when pursuing leak investigations. Attorney General Merrick Garland also claimed he would support legislation that would block the DOJ from targeting journalists.
We're no closer to seeing this legislation enacted. But the DOJ has finally made it official: it is abandoning the balancing test and wlll no longer seek journalists' records in cases like these. Here's how the Attorney General puts it in the recently-released memorandum [PDF] announcing the change in tactics.
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, as set out below.
This new prohibition applies to compulsory legal process issued to reporters directly, to their publishers or employers, and to third-party service providers of anyof the foregoing. It extends to the full range of compulsory process covered by the current regulations, specifically, ‘subpoenas, warrants, court orders issued pursuant to 18 U.S.C. § 2703(d) and § 3123, and civil investigative demands. Further, it applies regardless of whether the compulsory legal process seeks testimony, physical documents, telephone toll records, metadata, or digital content.
There are exceptions, of course. Journalists' records can be sought when they're the target of a DOJ criminal investigation. This includes criminal acts not related to their day jobs and also criminal acts committed to obtain government information, like breaking and entering or (one presumes) the number of things considered illegal hacking by the DOJ. The DOJ also has an emergency exception to exploit -- one that says the DOJ can ignore this new guidance if demanding journalists' records is "necessary" to prevent "imminent risk of danger or bodily harm."
But receiving and publishing leaked documents is not considered a criminal act and the DOJ says as much in its memo.
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.
And the memo reaffirms the AG's commitment to backing legislation that would ensure this lasts past his tenure at the DOJ.
To ensure that protections regarding the use of compulsory legal process for obtaining information from or records of members of the news media continue in succeeding Administrations, the Department will support congressional legislation to embody protections in law.
So, this is obviously a first for the DOJ. And, of course, the offer only stands for as long as this regime is in power. Legislation could make it permanent, but there are still enough Trump fans littering the halls of Congress who believe to be a journalist is to be innately untrustworthy, if not an actual criminal, so pushing this past these obstacles might be difficult.
And, again, we're left to speculate who the DOJ believes is covered by this. Is it only members of large press outlets or clearly-defined press entities that are well-established? Or will it cover the constantly-expanding field of citizen/independent journalists who provide the same service, albeit without the masthead? Hopefully, the DOJ will recognize that journalism is an act, not just an occupation, and extend protection to those operating without editors and deadlines.
