Last week, Attorney General Merrick Garland announced broad new limitations on federal prosecutors’ use of compulsory legal process—including subpoenas, warrants, and court orders—to obtain journalists’ records. This change in policy, spurred by revelations that the Justice Department had sought phone and email records of New York Times, Washington Post, and CNN reporters in the waning days of the Trump administration, is, as others have observed, a remarkable victory for press freedom. What’s most important, though, is not what Garland has already done, but what he acknowledges must be done next. As Garland himself has suggested, the long-term significance of the Justice Department’s policy change will turn on precisely how the policy is translated into regulation, and on whether and how Congress codifies it in statute.
The DOJ’s regulations relating to media subpoenas, originally promulgated in 1970, are intended to limit the government’s use of law enforcement tools that can sometimes impair newsgathering activities. They are meant to strike a balance between the freedom of the press on one hand, and national security, public safety, and effective law enforcement on the other. Since Attorney General Eric Holder tightened the rules in 2015, the regulations have generally barred prosecutors from using compulsory process to uncover journalists’ sources, except where the information sought is essential to an investigation and the government can’t reasonably obtain the information through other means. The rules also generally require the Justice Department to notify news organizations before seeking reporters’ records from third parties like phone companies and email providers. The regulations seem restrictive, but their prohibitions are not categorical, and their operative terms are vague and subject to interpretation by the Justice Department. As we now know, they did not deter the Trump administration from seeking access to journalists’ records or from doing so without first notifying the relevant news organizations. Nor did they deter it from imposing gag orders on communications intermediaries—and later, on the news organizations as well.
To its credit, the Biden administration has now acknowledged that the regulations are insufficiently protective of press freedom. After the Trump administration’s seizure of journalists’ records became public, President Biden called this kind of surveillance “simply, simply wrong.” In the memorandum he issued last week, Garland conceded that a test that requires the Justice Department to engage in ad hoc balancing “may fail to properly weight the important national interest in protecting journalists from compelled disclosure of information revealing their sources, sources they need to apprise the American people of the workings of their government.” The memorandum jettisons the balancing test in favor of a broad “prohibition on the use of compulsory process” that is subject to only a few limited exceptions.
The ultimate significance of the policy change will depend in large part on what the Justice Department and Congress do next.
Without question, the new rules are much better than the old ones. But as Garland effectively acknowledges in his memorandum, the ultimate significance of the policy change will depend in large part on what the Justice Department and Congress do next. Below, we outline the steps they should take, highlighting the key issues that are still left to resolve.
First, the Justice Department should revise its media subpoena regulations in light of Garland’s memorandum. Garland has instructed the deputy attorney general to begin this process, and doing so promptly is important for at least two reasons. One is that it’s more difficult to change regulations than it is to change a memorandum; setting out the new policy in regulation will create a little more friction if a future Justice Department decides to backtrack on the commitments that Biden and Garland have now made. The other reason is that translating the memorandum into regulation will give the Justice Department an opportunity to answer some of the important questions the memorandum leaves unanswered.
One such question: Who will the new regulations protect? By its terms, Garland’s memorandum applies to “members of the news media” who are “acting within the scope of newsgathering activities.” But the document doesn’t define the first phrase and defines the second only partially. And yet a lot turns on what these terms mean. There may be no question that reporters for The Wall Street Journal and National Public Radio are “members of the news media,” but these days a great deal of important reporting is done by journalists who don’t fit the traditional mold. Consider the many technology and national security journalists who have set up shop on Substack, for example. Will the new regulations protect them? A document released to the Knight Institute and Freedom of the Press Foundation under the Freedom of Information Act (FOIA) shows that the Justice Department currently assesses who qualifies as a “member of the news media” by considering a dozen different factors. Perhaps a multi-factor test is inevitable, but this one seems to reserve a great deal of discretion for agency officials. The task will be challenging, but the Justice Department should develop (and adopt) a test that offers more clarity and predictability while also accounting for the diversity of legitimate and valuable journalistic activities.
If the Justice Department defines newsgathering narrowly, there is a real risk that the protections the rules seem to offer will be unavailable in some of the cases in which those protections are likely to be most important.
Implementing the memorandum in regulation would also give the Justice Department an opportunity to better define the memorandum’s other key phrase—“acting within the scope of newsgathering activities.” Again, the memorandum does define this term, but only partially. It explains that journalists are not acting within the scope of newsgathering activities if they use “criminal methods” to obtain government information—if they break into government buildings, for example, or, presumably, into government databases. At the other end of the spectrum, the memorandum provides that journalists do not lose protection merely because they “possessed or published government information.” These markers are helpful, but national security journalism often involves activities that fall between them. Has a journalist gone beyond the scope of newsgathering activities if she asks a government official to share a classified document, for example, or asks for information about classified activities? It’s important to remember that a good deal of what we ordinarily think of as national security journalism can readily be reframed as “soliciting classified information,” which the government has previously characterized as a violation of the Espionage Act. Thus, if the Justice Department defines newsgathering narrowly, there is a real risk that the protections the rules seem to offer will be unavailable in some of the cases in which those protections are likely to be most important.
Second, the Justice Department should make clear that the new regulations apply to all forms of compulsory process—including to national security tools not covered by the current regulations. The current regulations do not apply to surveillance conducted under the Foreign Intelligence Surveillance Act (FISA), or to national security letters, which allow the FBI to obtain metadata from communication service providers, like phone companies and internet service companies, without a warrant. But these national security authorities can be used in ways that raise the same press freedom concerns that led Garland to issue his memorandum last week. And in fact they have been. In one notorious incident, the FBI used “exigent letters”—a kind of watered-down (and unlawful) national security letter—to obtain records relating to Ray Bonner and Jane Perlez from The New York Times, and Ellen Nakashima and Natasha Tampubolon from The Washington Post. According to news reports, the Justice Department may have used an (actual) national security letter to obtain records relating to Bart Gellman, another Washington Post journalist. Records released in response to the same FOIA case mentioned above contemplate the use of FISA tools against media organizations and reporters as well—though the heavily redacted records do not indicate to what extent, and in what ways, these tools have been used in these ways in the past.
Third, Congress should codify the new protections. Doing so will ensure that they can’t be withdrawn by a future Justice Department, and it will also ensure that the Justice Department’s implementation of the protections is overseen by the judiciary. New legislation should be at least as protective as the Justice Department’s regulations, of course. (Sen. Ron Wyden’s PRESS Act provides a promising framework, even if it requires tightening in some respects.) Congress should also provide for additional procedural protections where the Justice Department invokes an exception to the ban on seeking access to journalists’ records. For example, as Eve Burton and Lynn Oberlander proposed at a congressional hearing last month, Congress should provide for the appointment of a special advocate to represent the interests of news organizations and the public in the rare circumstances in which the Justice Department can justify the imposition of a gag order on a third-party record holder. (Disclosure: Burton is a member of the Knight Institute’s board.)
Thanks to the revelation of the Trump administration’s abuses, there is a new consensus that existing protections for press freedom need to be strengthened. The new consensus supplies an unusual opportunity for actual progress. Both the Justice Department and Congress should move quickly to build on the blueprint set out in the Attorney General’s memorandum. Stronger protections for press freedom are crucial to ensuring that journalists can do the work our democracy needs them to do.
Anna Diakun is a staff attorney at the Knight Institute.
Jameel Jaffer is executive director of the Knight Institute.