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Justice Department curtails seizure of reporters’ phone, email records in leak investigations

U.S. Attorney General Merrick Garland.
U.S. Attorney General Merrick Garland. (Ken Cedeno/Reuters)
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Attorney General Merrick Garland has sharply limited how and when prosecutors can secretly obtain reporters’ phone and email records, formalizing a Biden administration decree that the government would stop using secret orders and subpoenas for journalists’ data to hunt for leakers.

The memo says the department “will no longer use compulsory legal process for the purpose of obtaining information from or records of members of the news media acting within the scope of newsgathering activities.”

The previous Justice Department rules for using reporters’ data to pursue unauthorized disclosures of classified information were widely criticized by First Amendment advocates and members of Congress, who said they gave free rein to prosecutors to secretly pursue such records if they thought telling the news organization in question might harm an investigation.

The rules issued Monday do away with that exception, saying the department may seek reporters’ records only if the reporter is the subject or target of an investigation outside their journalistic work or is suspected of working as an agent of a foreign power or with a foreign terrorist group, or if there is an imminent risk of bodily harm or death.

The memo makes clear that the policy is not intended to safeguard a journalist engaged in criminality such as insider trading, but rather shield the work of reporting from secret prosecutorial scrutiny.

Garland’s memo declares “a free and independent press is vital to the functioning of our democracy” even as the United States has “an important national interest in protecting national security information against unauthorized disclosure.”

“But a balancing test may fail to properly weigh 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 memo states.

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Bruce Brown, executive director of the Reporters Committee for Freedom of the Press, called the memo “a necessary and momentous step to protect press freedom at a critical time” and said the policy “will ensure that journalists can do their job of informing the public without fear of federal government intrusion into their relationships with confidential sources.”

The memo puts in writing a policy change announced in early June, after the government revealed the use of secret subpoenas to try to identify sources for 2017 stories published by The Washington Post, CNN and the New York Times. Washington Post Publisher Fred Ryan said Garland “has taken an important step toward ensuring the abuses of the past do not reoccur and that freedom of the press is protected.”

Controversies over such practices have flared up over the years, pitting the desire of government officials to find and punish those who disclose classified information against the constitutional protections of a free press.

The new rules modify regulations put in place in 2013 in an attempt to quell backlash over the Obama administration’s expansion of leak-hunting efforts. Press advocates say such probes chill newsgathering by discouraging officials from speaking to reporters who are seeking to reveal important information about government activity.

Garland’s changes could be reversed by a future administration. But the memo makes clear he plans to develop further regulations to make the policy more likely to last; it also endorses congressional legislation to make the changes permanent.

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The batch of media subpoenas most recently at issue were approved by Justice Department leadership in the waning days of the Trump administration. Officials have said they followed the policies put in place during the Obama years.

In addition to decrying the efforts to probe legitimate newsgathering by reporters, First Amendment advocates were outraged that the Justice Department sought to prohibit Times lawyers and executives from disclosing the government’s efforts to seize the email records of four reporters from the news organization.

In that case, a magistrate judge initially prohibited the paper’s top lawyers and others — including Google, which provides email services to the newspaper, from revealing the existence of a court order to turn over email records.

The first such gag order dated to the Trump administration. But career prosecutors and supervisors in the Biden administration declined to immediately lift it or abandon efforts to get those records.

During the Biden administration, a Times lawyer was first notified of the effort to get the records, and also commanded not to disclose it — a move that legal experts called unprecedented.

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The department revealed in early May that it had, during the Trump administration, secretly obtained the phone records of three current and former Washington Post journalists and tried to obtain their email records. At first, the department sought to defend the practice as rare but necessary to prevent disclosures of classified information. But on May 21, President Biden said it was “simply wrong” to go after reporter records, and his administration began rewriting the policy.

The department also made a similar disclosure to CNN, reporting that it had, also during the Trump administration, secretly obtained the phone and email records of the news outlet’s Pentagon correspondent. In June, the department told the Times it secretly obtained the phone records of four Times reporters before Trump left office.

In each instance, the department did not seek actual content of phone calls or emails but wanted information such as who called or emailed whom, and when.

The department has not publicly revealed the particular stories at issue. But the eight reporters targeted and the time period in question, 2017, suggest a broad crackdown.

The Post reporters — Greg Miller, Ellen Nakashima and Adam Entous — wrote a story about classified U.S. intelligence intercepts indicating that in 2016, Sen. Jeff Sessions (R-Ala.) had discussed the Trump campaign with Sergey Kislyak, who was Russia’s ambassador to the United States. Sessions later became Trump’s attorney general.

CNN Pentagon correspondent Barbara Starr reported on options the military had prepared to present to Trump on North Korea, U.S. action on a possible planned chemical attack in Syria and a military policy change to suspend the public release of information about American combat deaths in Afghanistan.

The Times said the article at issue for its targeted reporters — Matt Apuzzo, Adam Goldman, Eric Lichtblau and Michael S. Schmidt — seemed to be a piece about how James B. Comey, then the FBI director, handled politically charged investigations during the 2016 presidential election.

According to court documents, a U.S. magistrate judge approved a request for Times reporters’ email records on Jan. 5 and barred Google from revealing the request to anyone, setting off months of legal wrangling in which a small number of Times officials were told, but barred from telling others.