Attorney general offers reporters protections in leak investigations

Justice will support legislation to make journalist protections more durable


  • The Trump administration had seized the records of four New York Times reporters.
  • Both Democratic and Republican administrations have tried to identify journalists’ sources.
  • Government should not interfere with journalists’ role of “informing the public,” some experts say.

Attorney General Merrick Garland codified protections for journalists in a Justice Department memorandum Monday, reaffirming that prosecutors would no longer secretly obtain reporters’ records as part of leak investigations, marking a shift from the controversial practices of prior administrations.

With few exceptions, Garland said Justice would “no longer use compulsory legal process in obtaining information from or the records of members of the news media acting within the scope of newsgathering activities…”

The new guidelines extend to subpoenas, warrants, court orders and demands in civil investigations, Garland said.

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“Further, it applies regardless of whether the compulsory legal process seeks testimony, physical documents, telephone toll records, metadata or digital content,” the attorney general directed.

Last month, Justice signaled that it would abandon the practice after it was disclosed that the Trump administration had seized the records of four New York Times reporters.

The announcement also followed President Joe Biden’s statements last month criticizing the seizure policy, calling it “simply wrong” and vowing that the practice would not continue in his administration.

The policy has been used by past Democratic and Republican administrations to try to identify sources who provided journalists with classified information. However, it recently came under fire again after three news organizations – The Washington Post, The New York Times and CNN – were made aware that their phone records were obtained.

Spyware used on journalists worldwide

Justice’s announcement comes as a consortium of journalists reported that a powerful spyware application developed by the Israeli surveillance firm NSO Group and sold to governments had been used in attempted and successful hacks of smart phones.

The deployment of the malware known as Pegasus is being linked to a sweeping phone collection operation that may have involved numbers linked to nearly 200 journalists, 600 politicians and government officials, 65 business executives and 85 human rights group representatives, according to the consortium’s investigation.

Some of the journalists’ numbers were linked to reporters representing the Associated Press, CNN, New York Times, Wall Street Journal, Bloomberg News and outlets in France and London. 

‘Critical time’ for press freedom

Of Garland’s action Monday, Bruce D. Brown, executive director of the Reporters Committee for Freedom of the Press, said the attorney general had taken a “momentous step to protect press freedom at a critical time.”

“This historic new 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,” Brown said.

The Garland memo also stated that Justice would support new legislation in an attempt to ensure that the policy would offer long-standing protections that would stand through changes of administrations.  

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