DOJ issues new rules on when government can subpoena journalist records

By The Madison County Record | Apr 3, 2014

Before government lawyers can subpoena a telephone company for records of a journalist, they must give the journalist “reasonable and timely notice.”

Attorney General Eric Holder adopted that policy on Feb. 27, after news organizations learned that phone companies provided their records to the government.

For a subpoena on a journalist’s phone company, Holder now requires a signature of the U.S. attorney or the assistant attorney general responsible for the case.

His new policy provides for a subpoena on a journalist’s phone company in a civil case, if reasonable grounds exist to believe the information is essential.

It states that, “The subpoena should not be used to obtain peripheral, nonessential, cumulative, or speculative information.

“The use of a subpoena or court order to obtain from a third party communications records or business records of a member of the news media should be pursued only after the government has made all reasonable attempts to obtain the information from alternative sources.

“The proposed subpoena or court order should be narrowly drawn.

“It should be directed at material and relevant information regarding a limited subject matter, should cover a reasonably limited period of time, and should avoid requiring production of a large volume of material.”

When the government must seek phone company records without notice, the new policy requires notice as soon as it poses no threat to the integrity of an investigation.

Notice shall occur automatically in 45 days, unless Holder himself grants 90 days.

The public affairs office of the Department of Justice (DOJ) will find out about a subpoena on a journalist’s phone company at least 10 days before the journalist finds out.

For direct subpoenas on journalists rather than phone companies, Holder’s new policy requires not only advance notice but also negotiation.

It provides that, “Where the nature of the investigation permits, the government should have explained to the member of the news media the government’s needs in a particular investigation or prosecution, as well as its willingness to address the concerns of the member of the news media.”

It declares that the DOJ views subpoenas and search warrants on non consenting members of the news media as extraordinary measures.

It states that the department will use them only when information is essential to a successful investigation, prosecution, or litigation, and only after making all reasonable attempts to obtain information elsewhere.

It allows exceptions for matters of life and death and national security.

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