Under heavy criticism from media organizations and others, the Obama administration has pulled back on one important aspect of its crackdown on government leaks: the ability of prosecutors to secretly seize reporters' records while investigating leaks to the media.
In an announcement Friday, the Justice Department said it is toughening the guidelines for subpoenaing reporters' phone records while also raising the standard the government needs to meet before it can issue search warrants to gather reporters' email.
Attorney General Eric Holder said in a statement that the department was "firmly committed to ensuring our nation's security, and protecting the American people, while at the same time safeguarding the freedom of the press."
Holder also endorsed the proposal for a shield law that would protect reporters.
"While these reforms will make a meaningful difference, there are additional protections that only Congress can provide," he said. "For that reason, we continue to support the passage of media shield legislation."
The new guidelines come after a firestorm of protest involving two episodes in the hunt for government leakers: a secret Justice Department subpoena of almost two months of telephone records for 21 phone lines used by reporters and editors for The Associated Press and the use of a secret warrant to obtain some emails of a Fox News journalist.
The Justice Department said it will now create a “News Media Review Committee” to advise its top officials when the department seeks media-related records in investigations.
Among other things, the government will have to give advance notice to the news media about subpoena requests for reporters' phone records unless the attorney general determines that "for compelling reasons" such notice would pose a clear and substantial threat to the integrity of the leak investigation.
"It is expected that only the rare case would present the attorney general with the requisite compelling reasons to justify a delayed notification," the Justice Department report issued Friday said.
Also under the new guidelines, the government will issue search warrants directed at a reporter's email only when that reporter is the focus of a criminal investigation for conduct not connected to ordinary newsgathering activities.
"Under this revised policy, the department would not seek search warrants … if the sole purpose is the investigation of a person other than the member of the news media," the report stated. The Attorney General himself would have to approve all such search warrants.
Reaction to the new guidelines was generally positive.
Erin Madigan White, the AP's senior media relations manager, said the news agency "is gratified that the Department of Justice took our concerns seriously.”
“The description of the new guidelines released today indicates they will result in meaningful, additional protection for journalists,” she said. “We'll obviously be reviewing them more closely when the actual language of the guidelines is released, but we are heartened by this step."
David Anderson, an expert in media law at the University of Texas at Austin, said the changes would make a "substantial difference" because US attorneys who want news media records would have to "jump through some hoops" to get them, according to a Reuters report.
"It appears that they are recognizing that the very broad subpoena of the AP's phone records was too aggressive," Lucy Dalglish, dean of the journalism school at the University of Maryland, told the Associated Press. "They also recognized that they are not going to prosecute a reporter for basic newsgathering activities unless they have reason to believe the reporter is involved in the alleged breaking of the law. That has not been all that clear in the past."
But, she added: "The devil will be in the details. They left themselves a little bit of wiggle room."
In May, The Reporters Committee for Freedom of the Press and 51 news organizations wrote to the Department of Justice, vigorously protesting the subpoena of AP phone records.
"The scope of this action calls into question the very integrity of Department of Justice policies toward the press and its ability to balance, on its own, its police powers against the First Amendment rights of the news media and the public’s interest in reporting on all manner of government conduct, including matters touching on national security which lie at the heart of this case," the letter argued.
In response to Friday’s Justice Department action, The Reporters Committee commended Holder “for taking seriously the concerns of the press.” (The organization was formed in 1970 to provide legal help to journalists seeking to protect their rights under the First Amendment and Freedom of Information Act.)
But in a statement Friday, The Reporters Committee also said, “We continue to believe that an impartial judge should be involved when there is a demand for a reporter’s records because so many important rights hinge on the ability to test the government’s need for records before they are seized.”