New DOJ reports provide detail on use of law enforcement tools against the news media

The DOJ “News Media Guidelines,” codified in 28 C.F.R. § 50.10 (the “Guidelines”), govern the collection of records or information from the news media, as well as the questioning, arresting, or charging of members of the news media.

The Guidelines were first instituted in 1970 by Attorney General John Mitchell in response to press uproar about the growing number of subpoenas seeking to compel journalists to reveal confidential news sources.  Two years later, in the landmark case Branzburg v. Hayes, 408 U.S. 665 (1972), the Supreme Court declined to recognize a First Amendment reporter’s privilege that would protect reporters from having to reveal the identity of their sources to the press (absent bad faith on the part of a prosecutor).  Over the years, the absence of a clear federal privilege has prompted several legislative efforts to pass a federal shield law, but to no avail.

This means that, at the federal level, the Guidelines are central to ensuring that the news media not become an “investigative arm” of the government.  The Guidelines thus are the primary restraint on the executive branch from encroaching on press freedom.

The Justice Department most recently revised the Guidelines in 2014 and 2015, strengthening protections for reporters.  Those revisions came in the wake of controversy over a secret subpoena that was used to seize telephone records for more than 20 lines used by the Associated Press, and the decision of the department to characterize a journalist as a co-conspirator in an Espionage Act investigation because that reporter encouraged a source to divulge information.

Seizing of a journalist’s email records by targeting him as a suspect in a national security investigation was possible because of a loophole that exists under the “suspect exception” of the Privacy Protection Act (“PPA”), which generally protects journalists from having to hand over work product in criminal investigations.  Under the PPA, the Justice Department can obtain a warrant against a reporter if the reporter is suspected of committing the underlying crime.  The revised Guidelines prevent the government from invoking the suspect exception “if the sole purpose is to further the investigation of a person other than the member of the news media,” which means the Justice Department can’t allege that a reporter committed the underlying crime pretextually to gather evidence against the true suspect.

In tandem with the changes made in the Guidelines, Attorney General Eric Holder also committed to publish data regarding the DOJ’s use of law enforcement tools against journalists under the Guidelines.

The Department released reports for years 2014 and 2015.  Recently, the Reporters Committee discovered that the DOJ had posted the reports for 2016 and 2017 online, just as it was preparing to file a FOIA request for them.  It is unclear when and how these reports were released to the public.[1]

Here are a few highlights from the 2016 and 2017 reports, including several incidents where journalists were subpoenaed to testify about their reporting.  These are followed by a few general observations about the new disclosures.

• In 2016, former Los Angeles Times reporter Robert Faturechi, who is now at ProPublica, was served with a subpoena calling him as a witness in the criminal trial of former Los Angeles Sheriff Leroy Baca, who was charged with, and convicted of, offenses related to a conspiracy to obstruct an FBI investigation into civil rights violations at the county jail.  The subpoena, approved by the U.S. attorney general, sought to elicit testimony related to Faturechi’s interview of Baca in connection with a subsequently published news story.  Faturechi and the Los Angeles Times moved to quash the subpoena, asserting the First Amendment reporter’s privilege to avoid Faturechi taking the stand as a government witness.  The district judge denied the motion and Faturechi testified at trial that Baca had told him that he had directed Sheriff’s Department investigators to visit one of the FBI investigators at her house.  Attorneys for the Los Angeles Times successfully persuaded the judge to put strict limits on the scope of questioning, and Faturechi testified without revealing anything that could identify a source, the identity of any source, or anything related to confidential materials.  (2016 Report, A.2.)
• Also in 2016, the deputy assistant attorney general for the Justice Department’s Criminal Division authorized three search warrants for the email accounts of members of the news media under the PPA.  The cases are not specifically identified, but involved cyberstalking, firearms offenses, and a child pornography case (where the reporter co-habited with the suspect).  There were four similar cases in 2017, including two involving fraud, one involving a campaign finance violation, and a prostitution and money laundering investigation.  (2016 Report, C.2–C.4; 2017 Report, C.1–C.4.)
• Subpoenas and applications for court orders may be authorized by the assistant attorney general or United States attorneys when members of the news media expressly agree to provide the requested information, or when the information sought is not related to newsgathering activities.  In 2016, there were 22 such instances.  Interestingly, the 2016 report notes that a trial subpoena was issued to Lindsay Katz, a television reporter who had worked for KMOV-TV, in connection with the prosecution of a police officer accused of violating the civil rights of a political candidate by orchestrating a false arrest.  The United States attorney’s office thought that Katz had expressly agreed to provide the information but, when it learned that KMOV intended to challenge the subpoena, it withdrew the subpoena.  (2016 Report, D.11.)
• In 2017, nine journalists were swept up in the mass arrest of over 200 people during a protest on Inauguration Day in Washington, D.C.  Aaron Cantú, who was a freelance journalist when he was arrested at the protest and now works at the Santa Fe Reporter, was charged with felony rioting in connection with his covering of the protest.  His charges were dropped, along with those against the remaining defendants, in 2018.  The 2017 report reveals that the attorney general authorized the DOJ to apply for a warrant permitting the search of Cantú’s smartphone.  (2017 Report, A.3.)
• A relevant entry in the 2017 report does not identify the case by name, but tracks the facts around the James Wolfe leak investigation.  In February 2018, national security reporter Ali Watkins was notified that her phone and email records had been seized at some point in 2017.  Watkins was identified as one of the reporters with whom James Wolfe, a former Senate Intelligence Committee security director, had allegedly been in contact, a fact which he, the FBI claims, lied about when questioned by FBI agents in connection with a leak case, according to a government indictment.  On October 15, 2018, Wolfe pled guilty to lying about his contact with one of the reporters cited in the complaint against him (not Watkins).  The approvals for the seizure of the reporter’s records came from the deputy attorney general, who was serving as the acting attorney general in this matter.  Interestingly, the DOJ sought a Section 2703(d) order for “historical, non-content information regarding [Watkins’s] telephone number” and issued subpoenas directed at third-party providers for the production of business records and subscriber information.  Notably, the records the DOJ obtained could have included Watkin’s historical cell site location data.  In June 2018, the Supreme Court ruled that, for more than seven days of cell site location data, investigators need a warrant.  (2017 Report, A.4.)
• The 2017 report references a Twitter-based cyberstalking investigation where the journalist was the victim.  The journalist/victim was cooperating with the investigation and expressly authorized the Justice Department to seek a warrant for his Twitter account records (to help determine the identity of the stalker).  As there is no “consent exception” for a search warrant under the Guidelines, in contrast to subpoenas, the prosecutors sought and received the attorney general’s approval for the warrant.  A federal cyberstalking charge was initially filed against the suspect, but was later dropped.  The suspect currently faces state charges.  (2017 Report, A.2.)
• The Guidelines require that the DOJ seek the express authorization of the attorney general before questioning a member of the news media regarding any offense that the journalist is suspected of having committed in the course of, or arising out of, newsgathering activities.  In 2017, one journalist, suspected of committing an offense in the course of newsgathering activities, participated in a voluntary interview with the FBI after the attorney general determined that the “proposed interview would not unreasonably impair newsgathering activities.”  (2017 Report, B.1.)  One journalist was questioned under this provision of the Guidelines in 2015 and two in 2014.  (2015 Report, B.1; 2014 Report, B.1.–B.2.)

In addition to those specific cases of interest (and the reports are worth a skim in their entirety), the new reports also reveal a few broader trends or themes.  For instance, the overall number of subpoenas and applications for court orders or search warrants does not appear to have fluctuated much in the last four years.

Each year, the attorney general approved one to four subpoenas or applications for court orders or warrants, and the questioning, charging, or arrest of members of the news media on one or two occasions.  Subpoenas, applications for court orders or search warrants, questioning, arrests, or charges authorized by the deputy assistant attorney general for the Criminal Division under the PPA’s “suspect exception” increased from zero in 2014, to two in 2015, and to four each in 2016 and 2017.

The number of subpoenas authorized at a lower level by the assistant attorney general or United States attorney because the journalist or outlet has consented to giving the information or where the information is not related to newsgathering has always been greater than those requiring higher level approval.  There were 7 such cases in 2014, 22 each in 2015 and 2016, and 14 in 2017.  Unlike the previous years, the 2017 report only provides the total number of subpoenas issued after consent and does not provide a description of each incident.

The latest report also includes a new fifth section reporting that the Office of Enforcement Operations conducted a total of 113 “News Media Consultations.”  This section does not, however, provide any further details.  RCFP is seeking additional information from the Justice Department on the nature of these consultations.

In sum, the overall data provided and the specific case summaries in the reports are useful not only in observing general trends and themes in the Justice Department’s investigations involving the news media, but also in keeping the Justice Department accountable for its obligations and commitments under the Guidelines.

[1] The reports can be found on Criminal Division’s FOIA library page.  (Edited on 11/15/2018.)