DEPARTMENT OF JUSTICE REPORT ON REVIEW OF NEWS MEDIA POLICIES


Seal of the United States Department of Justice

Seal of the United States Department of Justice (Photo credit: Wikipedia)

7-12-13-Report-on-Review-of-News-Media-Policies

The Department of Justice released a Report on Review of News Media Policies on July 12.

 

Here is the executive summary:

 

In May the President ordered an evaluation of Department of Justice’s policies and practices governing the use of law enforcement tools in obtaining information or records from or concerning members of the news media in criminal and civil investigations, including subpoenas, court orders, and search warrants.

 

The report outlines changes in policy. Changes that will not be in effect until a proposed media shield law is passed by congress.

 

There are 10 proposed changes they are:

 

  1. Reversing the Existing Presumption Regarding Advance Notice

  2. Enhanced Approvals and Heightened Standards for Use of Search Warrants and Section 2703(d) Orders

  3. Establishment of News Media Review Committee

  4. Centralization of Review and Public Reporting Requirements

  5. Intelligence Community Certification

  6. Safeguarding Information

  7. Technical Revisions

  8. Written Guidance and Training Requirements

  9. Establishment of News Media Dialogue Group

  10. Intelligence Agency Administrative Remedies

 

 

  1. Reversing the Existing Presumption Regarding Advance Notice

 

The presumption will ensure notice in all but the most exceptional cases.

 

Current policy:

Negotiations with the news media should occur in cases where the “responsible Assistant Attorney General determines that such negotiations would not pose a substantial threat to the integrity of the investigation,” a determination that is then “reviewed by” the Attorney General when considering issuance of a subpoena to a third party for news media records. 28 C.F.R. § 50.10

 

New policy:

The presumption of advance notice will be overcome only if the Attorney General affirmatively determines that for compelling reasons, advance notice and negotiations would pose a clear and substantial threat to the integrity of the investigation, risk grave harm to national security, or present an imminent risk of death or serious bodily harm with recommendations from the News Media Review Committee described below.

 

The possibility that notice and negotiations with the media, and potential judicial review, may delay the investigation will not be considered a compelling reason under this updated policy.

 

The Attorney General may delay notification for an initial 45-day period and an additional 45 days. The second 45-days require a review by the News Media Review Committee. No further delays may be sought beyond the 90-day period.

 

Department policy would make clear that when Department attorneys should employ search methods – such as computer search protocols and keyword searches to limit the scope of intrusion into potentially protected materials.

 

  1. Enhanced Approvals and Heightened Standards for Use of Search Warrants and Section 2703(d) Orders

 

Current Policy:

The Privacy Protection Act of 1980 (PPA), 42 U.S.C. § 2000aa, contains the suspect exception” which applies when there is “probable cause to believe that the person possessing such materials has committed or is committing a criminal offense to which the materials relate,” including “the receipt, possession, or communication of information relating to the national defense, classified information, or restricted data” under enumerated code provisions. See 42 U.S.C. §§ 2000aa(a)(l) and (b)(l).

A Deputy Assistant Attorney General may authorize an application for a search warrant that is covered by the PP A, and no higher level reviews or approvals are required.

 

New Policy:

First, the Department will modify its policy concerning search warrants covered by the PPA to only when the member of the news media is the focus of a criminal investigation for conduct not connected to ordinary news-gathering activities.

 

Second, the Department would revise current policy to elevate the current approval requirements and require the approval of the Attorney General for all media related search warrants and court orders issued pursuant to 18 U.S.C. § 2703(d)

 

The presumption of notice, and standards applicable to requests for delayed notice, will also apply to search warrants and § 2703( d) orders that seek access to records of members of the news media related to news-gathering activities.

 

  1. Establishment of News Media Review Committee

 

The committee advises the Attorney General and Deputy Attorney General

 

  • when Department attorneys request authorization to seek media-related records in investigations into the unauthorized disclosure of information

  • when Department attorneys request authorization to seek media-related records in any law enforcement investigation without providing prior notice to the relevant member of the media

  • when Department attorneys request authorization to seek testimony from a member of the media that would disclose the identity of a confidential source.

 

The Committee will include

  • senior Department officials,

    • including but not limited to the Department’s Director of the Office of Public Affairs and the Department’s Chief Privacy and Civil Liberties Officer.

  • Members of the committee will have the opportunity to provide both individual and collective assessments of the merits of requests

  • This committee will ensure that

    • senior Department officials who are neither directly involved nor play a supervisory role in the investigations involved and with relevant expertise and experience are engaged in the consideration of the use of investigative tools that involve members of the news media.

 

  1. Centralization of Review and Public Reporting Requirements

 

The Department will require that all requests be submitted tothe Criminal Division’s Office of Enforcement Operations before they are ultimately forwarded to the Attorney General for decision.

 

Department policy will require that requests for authorization to use legal process to obtain information from, or records of, members of the news media be endorsed by the relevant United States Attorney or Assistant Attorney General before submission to the Criminal Division for review and evaluation.

 

Department attorneys will be required to report to the Criminal Division’s Office of Enforcement Operations

  • whether an approved subpoena, court order, or search warrant was issued, served, or executed,

  • whether the affected member of the news media or recipient of the subpoena, court order, or search warrant complied with or challenged the subpoena, court order, or search warrant, and the outcome of any such challenge.

 

The Department will make public, on an annual basis, statistical data regarding the use of media-related process.

 

  1. Intelligence Community Certification

 

In investigations of unauthorized disclosures of national defense information or of classified information,

  • the Director of National Intelligence after consultation with the relevant Department or agency head

    • would certify to the Attorney General the significance of the harm that could have been caused by the unauthorized disclosure

    • reaffirm the intelligence community’s continued support for the investigation and prosecution before the Attorney General authorizes the Department to seek media-related records in such investigations.

 

The certification will be sought not more than 30 days prior to submission of the approval request to the Attorney General

 

The certification formalizes current practice.

 

  1. Safeguarding Information

 

The Departments policies will be revised to provide formal safeguards regarding the proper use and handling of communications records of members of the news media.

 

The revisions will provide :

  • access to records will be limited to Department personnel who are working on the investigation and have a need to know the information;

  • the records will be used solely in connection with the investigation and related judicial proceedings;

  • the records will not be shared with any other organization or individual inside or outside of the government, except as part of the investigation or as required in the course of judicial proceedings;

  • at the conclusion of all proceedings related to or arising from the investigation, other than information disclosed in the course of judicial proceedings or as required by law, only one copy of records will be maintained in a secure, segregated repository that is not searchable.

 

Under circumstances where the Deputy Attorney General finds that specific, identifiable records are evidence of a separate past or imminent crime involving

  • death; kidnapping; substantial bodily harm; conduct that constitutes a criminal offense that is a specified offense against a minor as defined in 42 U.S.C. § 16911; or incapacitation or destruction of critical infrastructure as defined in 42 U.S.C. § 5195c(e),

 

The Deputy Attorney General may authorize broader use of the information.

 

  1. Technical Revisions

 

The Department will be revised to make clear that those policies apply to “communications recordsor business records” of members of the news media that are stored or maintained by third parties.

 

  1. Written Guidance and Training Requirements

 

The Department will prepare training materials regarding these new policies for dissemination to the Departments law enforcement officials and attorneys.

 

 

  1. Establishment of News Media Dialogue Group

 

The Department will establish an Attorney Generals News Media Dialogue Group to assess the impact of news media policies and to maintain a dialogue with the news media.

 

The group:

  • will meet six months after the proposed revisions

    • on an annual basis thereafter.

  • will include members of the news media, attorneys from various Department components, and the Director of the Department’s Office of Public Affairs.

 

  1. Intelligence Agency Administrative Remedies

 

The Department will work with others in the Administration to explore ways in which the intelligence agencies them selves can address information leaks internally, such as the withdrawal of security clearances and imposition of other sanctions. 

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