On Oct. 26, the Department of Justice formally revised its regulations setting out when it may obtain information from or records of members of the news media, including from third-party service providers. These regulations were a long time in the making, prompted by the backlash to revelations that DOJ had, in the waning days of the Trump administration, secretly seized the phone and email records of reporters at CNN, The Washington Post, and The New York Times. Following the public outcry, Attorney General Merrick Garland issued a memorandum in July 2021 largely prohibiting the use of compulsory legal process to obtain journalists’ records and promising to “further explain, develop, and codify” these protections in regulations. The attorney general’s commitment was a significant victory for press freedom. But, as the Knight Institute (where I work) noted at the time, much would turn on how DOJ revised its regulations and whether it filled in some troubling gaps.
A year and change later, the results are in – and they’re largely positive. To start, DOJ incorporated the ban on the use of certain types of “compulsory legal process” to obtain information from members of the news media into its regulations, with only limited exceptions. The agency also expanded the list of legal tools DOJ is prohibited from using to target reporters. The 2021 policy barred the use of subpoenas, warrants, court orders issued pursuant to 18 U.S.C. § 2703(d) and § 3123, and civil investigative demands; the new regulations also prohibit wire, oral, and electronic communication surveillance orders issued pursuant to 18 U.S.C. § 2518 and requests for communications data and other assistance made under mutual legal assistance treaties.
The regulations also protect a broader universe of “newsgathering” activities. While the policy memo protected members of the news media from compulsory process if they had done nothing more than possess or publish information (whether unclassified or classified), the regulations also protect the pursuit of information. The policy memo left room for DOJ to exclude from protection any journalists who seek out classified information from their sources, on the theory that they are “soliciting” classified information in violation of the Espionage Act. While the new regulations do not explicitly rule out the possibility that DOJ will exclude journalists engaged in this activity from protection, the use of the word “pursuing” suggests that the new regulations may encompass this aspect of newsgathering.
These changes should be celebrated. They will allow reporters more space to do the work that the public needs them to do.
That said, the regulations aren’t perfect. Perhaps most significantly, they fail to define the phrase “member of the news media,” although that term determines who qualifies for the regulations’ protections. This omission will be less of an issue for members of traditional news media organizations; journalists at The New York Times and The Washington Post can be confident that they are protected. But others – Substackers, citizen journalists – will be left wondering. This is especially so because, though the regulations state who within DOJ is responsible for determining whether someone is a member of the news media, the regulations do not specify the criteria they will use to make that decision. According to a 2016 record the Institute and Freedom of the Press Foundation obtained through a Freedom of Information Act request, DOJ decides who qualifies for protection by considering a dozen different factors, ranging from the individual’s employer to the kind of content they produce. As we’ve written before, a multifactor test is not inherently bad, and could give the agency flexibility to include within the policy individuals and entities that a more formal definition would exclude. But the level of discretion such a system affords the agency, coupled with DOJ’s lack of transparency about the determinations it makes, is cause for concern.
Another area in need of improvement is DOJ’s definition of “compulsory legal process.” Though DOJ expanded the scope of this phrase in the revised regulations, the definition still does not encompass all types of compulsory legal process that might be used against journalists to obtain sensitive information. It does not include the various surveillance authorities of the Foreign Intelligence Surveillance Act, for example, and it is unclear whether it extends to national security letters.
DOJ should tighten the guidelines to address these issues. Perhaps even more important, Congress should codify them in legislation. Though nearly all states have a shield law or the equivalent, the federal government doesn’t. Codifying these protections would ensure that the news media couldn’t lose these protections on a whim. And, importantly, it would ensure that the judiciary has oversight over DOJ’s implementation of these protections, rather than leaving the agency to police itself.
All of this said, we shouldn’t lose sight of how meaningful these reforms are. For the most part, journalists will be able to do their job – central to the functioning of democracy – without fear that the government will have access to their records. These regulations are a win for the press and the public, and now we must work to safeguard these hard-fought victories.