WASHINGTON – Attorney General Eric Holder promised tough new restrictions Friday on the seizure of journalists’ phone records and emails, backing off from the Obama administration’s aggressive use of secret court orders to obtain news media records as part of investigations into leaks of government secrets.
The new policies, which lawyers for news organizations hailed as significant new protections for the media’s ability to freely report on government activities, came after two months of controversy over the administration’s policies regarding surveillance and the free flow of information.
Attention to the issue began with disclosures that the FBI had secretly obtained phone records and emails from reporters at the Associated Press and Fox News. News of those investigations prompted President Barack Obama to direct Holder to review the Justice Department’s policies.
Pressure on the administration to change its policies mounted after Edward Snowden, the former National Security Agency contractor, disclosed information about the government’s widespread gathering of telephone and email records for use in counterterrorism investigations.
Holder presented the proposed policy changes to Obama on Friday. Under the new rules, prosecutors in nearly all cases will be required to give news organizations advance notice before seeking records of contacts between reporters and their sources. That will give a news organization time to challenge the demand for records in court.
Moreover, the department will be forbidden from using search warrants to obtain records from reporters except in cases where the reporter is the target of a criminal investigation not involving news gathering. That rule abandoned the practice used in the Fox News case of branding a journalist as a co-conspirator in the crime of espionage.
“Members of the news media will not be subject to prosecution based solely on news-gathering activities,” Holder said in a report to Obama.
The Justice Department report also tacitly conceded a point made by many of Obama’s critics: that the administration had launched too many criminal investigations into leaks.
Leak investigations “are inherently difficult” and “resource intensive,” the report said, adding that the Justice Department would work with intelligence agencies to find ways to “address information leaks internally” by withdrawing security clearances from suspects or other steps that don’t involve criminal probes. A White House spokesman said Obama supported that shift away from prosecutions.
The new guidelines were greeted with relief from some journalism organizations.
“The Associated Press is gratified that the Department of Justice took our concerns seriously,” said AP spokeswoman Erin Madigan White. “The description of the new guidelines released today indicates they will result in meaningful, additional protection for journalists.”
The Reporters Committee for Freedom of the Press, a nonprofit group that provides legal advice to journalists and coordinated a media coalition to suggest changes to the Justice Department, took a more cautious approach. It said Holder is making improvements to existing guidelines, but said it believed “an impartial judge” should be involved before any seizure of reporters’ records.
Holder also called on Congress to move forward with passage of a federal shield law to protect journalists. While some states have such laws, the federal government does not have a media shield law that limits the circumstances for when journalists can be made into sources for a government investigation, and proposals to pass one have long been stalled.
But with new momentum from the recent controversies, Senate Judiciary Committee Chairman Patrick Leahy, D-Vt., promised his committee would take up the legislation anew.
“In an open society, a free press is essential to guaranteeing the public’s right to know,” Leahy said in a statement. “That is why the burden is always on the government, when it seeks information about the press or confidential sources.”
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