DOJ releases long-awaited 2022 annual report on news media guidelines

While virtually all states provide some protections for journalists from having to disclose the identities of confidential sources or other sensitive newsgathering information in response to legal demands, there is no analogous federal “shield” statute. As such, the most important protection for journalists at the federal level is an internal Justice Department policy, often referred to as the “news media guidelines.”

The guidelines limit when and how the Justice Department can seek information from journalists, or third parties like their phone and email providers, in criminal and civil investigations. Since 2013, the Justice Department has issued annual reports detailing how it implements the guidelines in practice. This post analyzes the recently released 2022 report.

Before getting into the meat of the report, however, it is important to note that the 2022 edition was eagerly awaited because it is the first one following major revisions to the guidelines. Two years ago, the Justice Department released a comprehensive overhaul of the policy, following revelations in 2021 of records demands involving CNN, The New York Times, and The Washington Post, which had been authorized at the end of the Trump administration.

The biggest change in the 2022 revisions is the replacement of a previous balancing test — where the needs of the department were weighed against the interests of the press — with a bright-line rule that, so long as journalists are acting within the “scope of newsgathering,” the department may not issue compulsory process for their records or testimony. The only exceptions are to authenticate already published information, exigent circumstances, and when the member of the news media agrees to comply.

Further, as discussed more below, the 2022 revisions implemented the directives in an earlier memorandum from Attorney General Merrick Garland, in which he laid out the new bright-line rule. That memorandum, dated July 19, 2021, made clear that the prohibition against compulsory process against journalists “acting within the scope of newsgathering” does not apply when the “member of the news media is under investigation for a violation of criminal law, such as insider trading.”

With that background, here is one big takeaway and a few other noteworthy nuggets from the most recent report. 

The most interesting item involves a securities fraud investigation. Here, the attorney general authorized subpoenas and court orders for records of a member of the news media, as well as voluntary questioning of the journalist. 

What’s important about this entry is that it occurred in the period after the 2021 attorney general memorandum but before the 2022 revisions. So it illustrates how the DOJ applied both the memorandum and the previous version of the guidelines, as the previous guidelines remained in effect, to the extent they did not conflict with the memorandum.

Under the memorandum, the DOJ could still issue subpoenas or court orders for records when the “member of the news media is the subject or target of an investigation when that status is not based on or within the scope of newsgathering activities” (emphasis added).

But the rule for voluntary questioning — as opposed to subpoenas and court orders — required attorney general approval for the questioning of a member of the news media in connection with “any offense that he or she is suspected of having committed in the course of, or arising out of, newsgathering activities” (emphasis added). The entry in the report suggests, therefore, that the questioning was in connection with such an offense.

So, the entry is a bit confusing in terms of whether the records demand was issued in connection with newsgathering activities. Under the 2021 memorandum, process was disallowed when the activity is “within the scope of newsgathering,” but is permitted when the member is “under investigation for a violation of criminal law, such as insider trading.” 

Having said that, it is conceivable that the department determined that the records demand was not based on activity “within the scope of newsgathering” but that the voluntary questioning could trench on newsgathering activity. Put another way, the records sought could have been narrowly connected with the fraudulent securities activity — which would be unlikely to have a connection to newsgathering — but there may have been concern that the questioning could range further. 

The entry also states that the attorney general applied the relevant principles under the previous balancing test, finding that “the proposed investigative measures were expected to reveal evidence of criminal activity, ensure public trust, and hold the member of the news media accountable for criminal conduct while not adversely impacting the essential role of the free press in fostering government accountability and an open society.” That is consistent with the pre-2022 guidelines, which direct the attorney general to take those considerations into account whenever he or she decides whether to authorize compulsory process.

Adding to the mystery, the process was never issued.

The rest of the report is pretty straightforward, and includes, among other things: 

– a journalist who complied with a subpoena to authenticate testimony related to the Jan. 6, 2021, attack on the U.S. Capitol;

– the attorney general authorizing voluntary questioning of media entities and journalists in connection with Jan. 6; 

– a number of warrants in child exploitation and fraud cases under the “suspect exception” to the Privacy Protection Act; 

– a few subpoenas and court orders authorized for purely administrative and financial records or “friendly” subpoenas, where the news media entity agrees to comply; and 

– two cases — a child exploitation and criminal tax matter – where the media entity or journalist was directly suspected of criminal activity.

Now on to the 2023 report, which we’re waiting on with baited breath!

The Technology and Press Freedom Project at the Reporters Committee for Freedom of the Press uses integrated advocacy — combining the law, policy analysis, and public education — to defend and promote press rights on issues at the intersection of technology and press freedom, such as reporter-source confidentiality protections, electronic surveillance law and policy, and content regulation online and in other media. TPFP is directed by Reporters Committee attorney Gabe Rottman. He works with RCFP Staff Attorney Grayson Clary and Technology and Press Freedom Project Fellow Emily Hockett.