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Far More than a Half-Measure on News Media Investigations

Gabe Rottman,
Legislative Counsel,
ACLU Washington Legislative Office
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July 18, 2013

Late last week, the attorney general released a report on new guidelines governing when and how the Justice Department can investigate members of the news media.

Prompted by the controversies over the excessively broad subpoena issued to the Associated Press and a search warrant targeting Fox reporter James Rosen, the guidance lays out a number of dramatic restrictions on the government's ability to secure these investigative tools when conducting "leak" investigations involving the media.

Reactions to the proposed guidelines have been cautiously positive, with praise for the affirmative changes, but concern that they fail to address the Justice Department's crabbed definition of "news media" and exempt foreign intelligence investigations.

I think that reaction is exactly right.

The Los Angeles Times called the new guidelines a "historic step toward restraining the reach of government and affirming the rights of a free press." The New York Times, while more restrained, acknowledged that, "if followed, [the guidelines] would make it more difficult to secretly review a media organization's e-mails, phone or business records or other communications." The Associated Press said that the description released on Friday "indicates that the [new guidelines] will result in meaningful additional protection for journalists."

By contrast, Marcy Wheeler at expressed very legitimate concern that the description of the guidelines will further limit who the Justice Department considers to be a legitimate member of the press, and will exclude groups like Wikileaks or independent bloggers such as herself. Law professor Glenn Reynolds, who blogs at Instapundit, articulated similar reservations and also noted that these guidelines are just that: guidelines without the force of law.

As with most things in Washington, both praise and concern are indeed warranted, though I think, on balance, and depending on how the formal guidance is actually worded, the Justice Department deserves a great deal of credit. That's especially true for the proposal to flip the presumption against notice in the federal regulations governing subpoenas issued to third-party communications providers (like Verizon in the AP-leak story) to one requiring advance notice to the media organization in all but the most exceptional of situations.

I'm going to address that sea change in the regulations, the other proposed provisions in the guidelines, the concerns over the definition of news media, and how these new guidelines would apply in a few of the current leak investigations in two subsequent posts this week.

The ACLU has been a vocal proponent of unilateral changes by the Justice Department to its own guidelines and regulations, as well as a federal reporter shield law that would provide special protection for anonymous sources. Though not perfect, Friday's proposed guidelines are far from being mere window dressing, and I'll try to unpack both their strengths and weaknesses in this blog series.

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