WASHINGTON (AP) – The Justice Department announced Friday it is revising its rules for obtaining records from the news media in leak investigations, promising that in most instances the government will notify news organizations beforehand of its intention to do so.
The revised procedures are designed to give news organizations an opportunity to challenge any subpoenas or search warrants in federal court.
News organizations are to be informed of an impending document demand unless the attorney general determines that notice 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 rule says.
The rule emphasizes that members of the Justice Department may apply for a search warrant to obtain a journalist’s materials only when that person is a focus of a criminal probe for conduct outside the scope of ordinary newsgathering.
The regulation follows disclosures that the Justice Department secretly subpoenaed almost two months’ worth of telephone records for 21 phone lines used by reporters and editors for The Associated Press. Separately, the department secretly used a search warrant to obtain some emails of a Fox News journalist.
The episodes, which involved leaks of classified material, prompted widespread criticism from lawmakers, the news media and civil liberties groups. President Barack Obama ordered Attorney General Eric Holder to review the Justice Department’s policy for obtaining such material.
The department said its changes are designed to safeguard the essential role of the free press in fostering government accountability and an open society, while protecting national security and law enforcement.
The revisions also ensure more robust oversight of the process by senior department officials and extend policies to cover the use of subpoenas, court orders and search warrants, it added.
AP President and CEO Gary Pruitt said that the news organization is still reviewing the new regulations but that the Justice Department appears to be following through on what Holder promised in July.
“These new regulations should provide significantly greater protection for journalists,” Pruitt said. “This is important as the regulations, more so than the courts, traditionally have provided the bulwark of protection for journalists from the reach of federal prosecutors. We are hopeful that these regulations will be enforced as intended and that Congress will pass a federal shield law to further protect journalists.”
Jane Kirtley, a University of Minnesota professor of media ethics and the law who speaks often on First Amendment issues, said she was troubled that there remain instances under the new rules in which the government might not notify news organizations of plans to obtain records, such as when the government believes notice would threaten national security.
“It seems that in times of crisis, there’s a tendency to see everything as a major national security breach,” she said. “Obviously the intelligence community is always going to represent security breaches as a big deal. My question is, are they all created equal? Do they all rise to the level of severity to justify what I see as an intrusion into press independence?”
The rule says that the attorney general may authorize subpoenas to members of the news media when the director of national intelligence certifies the significance of harm from a leak of classified information.
The current DNI, James Clapper, has weighed in strongly against the media in the Edward Snowden controversy, repeatedly referring to reporters who received stolen documents from Snowden as “accomplices.”
The Justice Department issued an unofficial version of the rule on Friday. The official version will be published in the Federal Register, probably next week.
In the AP story that triggered one of the leak probes, the news organization reported that U.S. intelligence had learned that al-Qaida’s Yemen branch hoped to launch a spectacular attack using a new, nearly undetectable bomb aboard a U.S.-bound airliner around the anniversary of Osama bin Laden’s death.
In the Fox News story, reporter James Rosen reported that U.S. intelligence officials had warned Obama and senior U.S. officials that North Korea would respond to a United Nations Security Council resolution condemning nuclear tests with another nuclear test. Fox attributed the story to sources inside North Korea.
In the leak probe of the AP story, a former FBI explosives expert later pleaded guilty to possessing and disclosing classified information. The investigation of the Fox story resulted in a State Department expert on North Korea pleading guilty to passing classified information to a journalist.
Associated Press writer Eric Tucker contributed to this report.
(Copyright 2014 The Associated Press. All rights reserved. This material may not be published, broadcast, rewritten or redistributed.)
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