Amending the Department of Justice subpoena guidelines

The guidelines that determine how and when federal prosecutors subpoena journalists were significantly modified in 2014, in response to the controversies over a seizure of Associated Press telephone records and a search warrant for the email of a Fox News reporter. They were further modified in January 2015 in response to concerns raised by news media organizations.

The Attorney General invited interested groups to comment and propose changes to the guidelines in the summer of 2013. The Reporters Committee coordinated a proposal from a broad coalition of over 50 media companies and journalism organizations. The proposal called for notice to the news media in all instances where the government makes a demand on third parties for a journalist's records.  It also seeks to expand the guidelines to cover all investigatory instruments (such as search warrants, FISA warrants, national security letters) and all types of records (including email, credit card information, and other newsgathering materials).

Attorney General Holder released his report to the president on the department's subpoena policy in July 2013, promising changes in the federal regulations. The finalized rules were released on Feb. 21, 2014. They addressed most of the concerns that the journalism coalition sought, including broad coverage of newsgathering records in the hands of third parties, but raised additional issues over the wording of some of the provisions. The News Media Dialogue Group, which was created by Holder in the July report, worked with Holder and Justice officials to amend some of the language in the rules. Revised rules were subsequently released on Jan. 14, 2015.

Documents available:

• 5/14/13 letter to the Attorney General protesting AP subpoena
• 6/21/13 letter to the Attorney General explaining proposal
• Proposed Revisions to 28 C.F.R. § 50.10
• 6/28/13 supplemental letter
• 7/30/13 summary of changes to the Attorney General's guidelines for subpoenas to the news media
• 1/22/15 summary of 2015 changes to guidelines

Official reports:

• Department of Justice: Report on Review of News Media Policies (7/12/2013)
• Attorney General's Statement (7/12/2013)

Reporters Committee statements and news reports:

• 5/14/13 press release: Media organizations call on Justice Department to mitigate damage from broad subpoena of journalists' phone records
• 5/14/13 news: Justice Department defends decisions in secret seizure of AP phone records as criticism mounts
• 5/15/13 news: White House, lawmakers push for federal reporter shield law in wake of AP phone records seizure
• 5/21/13 statement: Reporters Committee's Bruce Brown on Justice Department investigations of journalists
• 6/19/13 news: AP chief points to chilling effect after Justice investigation
• 7/12/13 statement: Reporters Committee response to release of Department of Justice’s “Report on Review of News Media Policies” 
• 7/12/13 news: Attorney General Holder's report to President adopts stronger protection for news media
• 7/18/13 news: Senators modify media shield bill to include Attorney General's changes to Justice policy
• 9/12/13 news: Senate Judiciary Committee passes a reporter's shield bill

For news coverage of the subpoena guidelines and other media law issues featuring Reporters Committee comments, see the "RCFP in the News" page in our online Press Room.