Attorney General Eric Holder will release new guidelines to restrict the ability of Department of Justice and FBI investigators to secretly obtain records from reporters and media organizations,
reports the
New York Times:
The new guidelines, which the official said would take effect almost immediately, would prevent the Federal Bureau of Investigation from portraying a reporter as a co-conspirator in a criminal leak as a way to get around a legal bar on secret search warrants for reporting materials, as an agent did in a recently revealed search warrant affidavit involving a Fox News reporter.
They would also make it harder — though not impossible — for prosecutors to obtain a journalist’s calling records from telephone companies without giving news organizations advance notice, as the department recently did in obtaining a sweeping set of phone records for reporters with The Associated Press. Notifying news organizations in advance would give them a chance to contest the request in court.
According to NBC's Pete Williams, a Department of Justice official described the rules changes as a concession that the DOJ was wrong to have secretly obtained records from the AP and it was wrong to have labeled Fox reporter James Rosen a "co-conspirator" in order to search his email in connection with a leak investigation.
Williams said the guidelines would only permit investigators to obtain records without advance notice if giving notice would compromise the integrity of the investigation. In addition, he says the guidelines will say that reporters cannot be targeted for conducting investigative journalism, even if that means encouraging leaks. Essentially, it would mean that investigators could only obtain records from journalists if the journalist was the target of a criminal investigation.
A DOJ official told the New York Times that any additional media protections would need to come from Congress in the form of a media shield law.