This week, a new policy goes into effect from the U.S. Department of Justice that provides guidelines related to obtaining information or records from members of the news media as well as guidelines for questioning, arresting, or charging members of the news media. Since the U.S. federal appeals court ruled last month that bloggers and online publishers have the same First Amendment rights as the “institutional press”, it stands to reason that these guidelines should apply to content publishers, too.
The Final Rule 28 CFR 50 10 from the Office of Attorney General Eric Holder was developed in response to negative backlash about how the Department of Justice has obtained information and records from journalists in the recent past. The guidelines are meant to foster freedom of the press while protecting national security and public safety at the same time. Ellyn Angelotti provides an excellent overview of the guidelines on the Poynter Institute blog, so check it out for all of the details. For a quick overview, here is what you need to know about the new guidelines:
Use of Law Enforcement Tools in Investigations
The Department of Justice will only use law enforcement tools and tactics to gather information and records from journalists when “extraordinary measures” are required. They will not be used in ordinary investigations. However, there are exceptions. The Attorney General or another Department of Justice senior official could authorize the use of law enforcement tools in investigations, but notice must be provided in advance of the use of law enforcement tools.
It’s important to note that advance notice is not required under certain circumstances, such as when a journalist is the focus of a criminal investigation, when an unauthorized classified information leak could cause significant harm, when there is a risk of death or serious injury, or when there is a risk of significant harm to national security. The guidelines also clarify that the government should not use law enforcement tools until it has exhausted other attempts to get the information it needs from non-media sources.
Reduce Burden and Intrusiveness of Investigations
Investigations and searches should be as unobtrusive to newsgathering as possible and minimize the possibility that protected records will be obtained. Furthermore, to reduce “fishing expeditions” and “overly burdensome requests”, the guidelines state that investigations should request very specific information and materials that are focused on a limited, narrow subject matter and are directly relevant to the investigation. Requests for documents from an unreasonably large timeframe or requests that require large amounts of material to be produced and delivered are not allowed.
The guidelines are certainly a step in the right direction, but keep in mind, the guidelines do provide enough wiggle room that the Department of Justice can circumvent them if it’s deemed necessary to do so.
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