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The Justice Department on Friday proposed curbing the ability of prosecutors to seize reporters’ records while investigating leaks to the media, after complaints that journalists’ rights were violated in recent high-profile cases.
A revised set of guidelines proposed by the department said that search warrants would not be sought against journalists carrying out “ordinary news-gathering activities.”
In another change, the department would in most instances notify news organizations in advance if a subpoena is being sought to obtain phone records.
“We continue to believe that an impartial judge should be involved when there is a demand for a reporter’s records, because so many important rights hinge on the ability to test the government’s need for records,” the Reporters Committee said in an emailed statement.
NAA called for a federal shield law, which would also mandate a federal judge review any request for confidential source information.
Two cases sparked debate earlier this year about whether the Justice Department had been overzealous in investigating government leaks and had infringed on rights of free speech.
In one, prosecutors obtained a warrant to search Fox News correspondent James Rosen’s emails. He was named a “co-conspirator” in a federal leaks probe involving his reporting on North Korea.
In the other, the Justice Department seized Associated Press phone records without prior notification as part of a probe into leaks about a 2012 Yemen-based plot to bomb a U.S. airliner.
Erin Madigan White, an AP spokeswoman, said the description of the guidelines offered by the department “indicates they will result in meaningful additional protection for journalists.” A Fox spokeswoman had no immediate comment.
One of the proposed changes would require the director of national intelligence to certify that a leak threatened national security before an investigation into an unauthorized disclosure could start.
Another would create a role for the department’s director of public affairs and privacy and civil liberties officer in reviewing decisions relating to journalists.
The changes will go into effect “almost immediately,” a Justice Department official said, but it was not immediately clear exactly when that would be.
Holder said in a statement that the department was “firmly committed to ensuring our nation’s security, and protecting the American people, while at the same time safeguarding the freedom of the press.”
Matt Lehrich, a White House spokesman, said the president believed the report was “an important step towards finding the balance between dealing with dangerous leaks of classified national security information and protecting the rights of journalists to freely gather and report the news.”
David Anderson, an expert in media law at the University of Texas at Austin, said the changes would make a “substantial difference” because U.S. attorneys who want news media records would have to “jump through some hoops” to get them.
The change in search warrant policy meant that prosecutors would face a “higher burden” if they sought a warrant to get access to a reporter’s work under a law called the Privacy Protection Act, the Justice Department official said.
In the future, the Justice Department would not seek warrants in relation to reporters “if the sole purpose is the investigation of a person other than the member of the news media,” the report said.
Under the previous policy concerning notification of media organizations of subpoena requests, the department had a presumption against such a move. Now, notice will be given unless prosecutors can show that it would “present a clear and substantial threat to the integrity of the investigation,” the report said.
The attorney general would have to sign off on such a finding. Previously, it was the head of the criminal division.
Holder said the department had gone as far as it could go within existing law in seeking to protect journalists. A proposed media shield law, which Obama has said he supports, would go further, Holder said.
As part of the review process, Holder met with representatives of various media organizations, including Reuters.
Holder has said that prosecutors followed all laws and guidelines in recent cases. He personally authorized the searches of Fox News records, while his deputy, James Cole, authorized the search of Associated Press records.
Existing Justice Department guidelines allow searches under rare circumstances, usually with notice to the news organization affected.
In the Associated Press case, investigators focused on how reporters learned about a U.S. operation in Yemen to foil a plot to bomb an airliner, government officials have said. An AP story in May 2012 described the plot. The AP has reported that it delayed publishing the story at the request of government officials until security concerns were allayed.
U.S. officials have said, however, that the leak compromised a U.S. agent working to undermine the Yemen-based group Al Qaeda in the Arabian Peninsula.
In the Fox case, Rosen, who was not prosecuted, had reported secret views of U.S. intelligence officials about North Korea. The Justice Department is prosecuting Stephen Kim, a former State Department contract analyst, for leaking the information to Rosen.
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