Garland Tells Prosecutors Not to Seize Reporters’ Records

Mr. Jaffer also flagged some issues that remain unanswered related to how broadly the department would define and interpret key terms in the new rules, like “news gathering.” He called them gaps that should be filled when the department issues its new regulation.

One ambiguity, he noted, is that the memo discusses a prohibition on compulsory legal tools that are listed in the old regulation — subpoenas, warrants and court orders — but does not mention another such tool the department sometimes uses to obtain records like logs of communications in national security inquiries, called a national security letter.

Still, the phrasing of Mr. Garland’s memo suggested an answer to one open question: whether the policy would protect reporters’ records in situations in which their source is suspected of being an outside hacker who stole information, as opposed to a government insider who leaked it.

Based on its wording, a reporter’s records would apparently still be protected. The memo said the prohibition would apply whenever “a member of the news media has, in the course of news gathering, only possessed or published government information, including classified information.”

The new limits apply only to reporters’ records. Mr. Garland noted that the government could still seize records of officials who are suspected of being the source of unauthorized disclosures.

In his memo, Mr. Garland noted that the Justice Department had previously operated under a “balancing test” that included some procedural limits on when prosecutors could seize reporters’ records, and required senior officials to weigh the interest in protecting a free flow of information to the press against the interest in gathering evidence that could solve crimes.

The attorney general wrote, however, that there were “shortcomings” to that approach and that the new policy was intended to better protect journalists’ ability to do their jobs.

Article source: https://www.nytimes.com/2021/07/19/us/politics/reporter-records-justice-department.html