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Still in pursuit of a new shield law

 
In May, on the heels of revelations that federal authorities had subpoenaed the telephone records of the Associated Press and its reporters, President Obama directed Attorney General Eric Holder to review the Department of Justice's policies and practices governing the use of law enforcement tools to obtain information or records from or concerning members of the news media. Attorney General Holder convened a series of meetings with representatives of the news media, First Amendment advocates, academics and others in order to meet the president's stated deadline for submission of a report on these issues by July 12. 

In May, on the heels of revelations that federal authorities had subpoenaed the telephone records of the Associated Press and its reporters, President Obama directed Attorney General Eric Holder to review the Department of Justice's policies and practices governing the use of law enforcement tools to obtain information or records from or concerning members of the news media. Attorney General Holder convened a series of meetings with representatives of the news media, First Amendment advocates, academics and others in order to meet the president's stated deadline for submission of a report on these issues by July 12.
 
ASNE was very active in this process. Former Freedom of Information Co-Chair Tim Franklin and Legal Counsel Kevin M. Goldberg attended one of the meetings, after which ASNE offered some suggestions on needed revisions to these policies and practices, which are entirely voluntary in nature. We also joined the Reporters Committee for Freedom of the Press and dozens of other groups in an extensive set of proposed revisions submitted to the attorney general on June 21 (a shorter explanatory letter is available here).
 
The Department of Justice submitted its report by the president's July 12 deadline, and we are happy with what we see. Several substantive statements and suggestions, taken together, should offer significant protection for news media, including:
 
1) Re-emphasizing that "news media will not be subject to prosecution based solely on newsgathering activities" as "the Department views the use of tolls to seek evidence from or involving the news media as an extraordinary measure." 
 
2) Changing the requirements regarding the advance notice to news media before issuance of a subpoena requiring a journalist to testify in court or seeking information regarding a news media entity's communications or before seeking a warrant to search a newsroom. Search warrants are currently covered under a federal statute known as the "Privacy Protection Act of 1980," the existence of which is the reason federal authorities often use subpoenas rather than search warrants to obtain information from the media. Whereas the Department previously provided notice unless an assistant attorney general determined it would pose a substantial threat to the integrity of the investigation, with that determination reviewed by the attorney general, notice will now be required whenever the assistant attorney general - after consulting with a to-be-formed News Media Committee consisting of non-enforcement personnel (including, at a minimum, someone from the Office of Public Affairs and the Department's Chief Privacy and Civil Liberties Office) - determines that for compelling reasons, notice 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." If these circumstances are present, notice could be delayed for 45 days and, upon another review by the same parties, one additional 45-day period.
 
3) In addition to applying the review procedures outlined above before requesting a search warrant from a federal judge to search a newsroom, the Department will:
Refrain from seeking warrants entirely when the news media is the focus of a criminal investigation for conduct connected to ordinary newsgathering activities.
Apply the three-part test usually required before seeking a subpoena to the search warrant situation as well, requiring that the information be "essential to a successful investigation, that other reasonable steps to obtain the information have been exhausted, and that the request has been narrowly tailored to obtain only the information necessary for the investigation."

4) Improving oversight of its activities by requiring that all requests for subpoenas or search warrants be submitted to the Office of Enforcement Operations within the Department's Criminal Division. That office will compile the requests and the Department will make statistical data about the use of these methods available on an annual basis.
 
5) Finally, the Department will take further external and internal steps to limit the impact of these tactics. The Department will first consult with relevant intelligence agencies regarding the dangers posed by the release of such information before seeking a subpoena or search warrant in relation to the unauthorized disclosure of national security information. Several new practices will be in place to ensure that information obtained via a subpoena or search warrant is seen and handled by as few people as possible and used only in conjunction with the purpose for which it was sought.
 
While we are very encouraged by the report, we remain dedicated in our pursuit of a federal shield law. We believe the voluntary nature of the Department of Justice's policies means the media's newsgathering abilities will always be threatened by overzealous federal authorities. The Department of Justice apparently understands this sentiment, stating in the report that the attorney general will "continue to support efforts within Congress to pass a media shield law" as "the Department cannot adopt certain measures without legislative action."
 
We hope you, too, will continue to support the shield law effort. We will have more on that front later this week or early next week, but here's a short teaser. Several Senators held a press conference today where they announced they will introduce a new version of shield law legislation, which we understand may incorporate the changes suggested by the attorney general's report; that could be marked up by the Senate Judiciary Committee later this month.
 
You can also contact ASNE Legal Counsel Kevin M. Goldberg at 703-812-0462 or goldberg@fhhlaw.com for more information about the Department of Justice report or the shield law.
 

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