(Adds reaction from reporters, publishers groups)
By Lawrence Hurley
WASHINGTON, July 12 The U.S. Justice Department
on Friday proposed curbing the ability of prosecutors to seize
reporters' records while investigating leaks to the media, after
complaints that journalists' rights were violated in recent
A revised set of guidelines proposed by the department said
that search warrants would not be sought against journalists
carrying out "ordinary news-gathering activities."
In another change, the department would in most instances
notify news organizations in advance if a subpoena is being
sought to obtain phone records.
The changes were contained in a report which the department
prepared at the request of President Barack Obama and which was
given to the president by Attorney General Eric Holder on
The Reporters Committee for Freedom of the Press and the
Newspaper Association of America praised the changes but both
said that they fell short of what was needed.
"We continue to believe that an impartial judge should be
involved when there is a demand for a reporter's records,
because so many important rights hinge on the ability to test
the government's need for records," the Reporters Committee said
in an emailed statement.
NAA called for a federal shield law, which would also
mandate a federal judge review any request for confidential
Two cases sparked debate earlier this year about whether the
Justice Department had been overzealous in investigating
government leaks and had infringed on rights of free speech.
In one, prosecutors obtained a warrant to search Fox News
correspondent James Rosen's emails. He was named a
"co-conspirator" in a federal leaks probe involving his
reporting on North Korea.
In the other, the Justice Department seized Associated Press
phone records without prior notification as part of a probe into
leaks about a 2012 Yemen-based plot to bomb a U.S. airliner.
Erin Madigan White, an AP spokeswoman, said the description
of the guidelines offered by the department "indicates they will
result in meaningful additional protection for journalists." A
Fox spokeswoman had no immediate comment.
One of the proposed changes would require the director of
national intelligence to certify that a leak threatened national
security before an investigation into an unauthorized disclosure
Another would create a role for the department's director of
public affairs and privacy and civil liberties officer in
reviewing decisions relating to journalists.
The changes will go into effect "almost immediately," a
Justice Department official said, but it was not immediately
clear exactly when that would be.
Holder said in a statement that the department was "firmly
committed to ensuring our nation's security, and protecting the
American people, while at the same time safeguarding the freedom
of the press."
Matt Lehrich, a White House spokesman, said the president
believed the report was "an important step towards finding the
balance between dealing with dangerous leaks of classified
national security information and protecting the rights of
journalists to freely gather and report the news."
David Anderson, an expert in media law at the University of
Texas at Austin, said the changes would make a "substantial
difference" because U.S. attorneys who want news media records
would have to "jump through some hoops" to get them.
The change in search warrant policy meant that prosecutors
would face a "higher burden" if they sought a warrant to get
access to a reporter's work under a law called the Privacy
Protection Act, the Justice Department official said.
In the future, the Justice Department would not seek
warrants in relation to reporters "if the sole purpose is the
investigation of a person other than the member of the news
media," the report said.
Under the previous policy concerning notification of media
organizations of subpoena requests, the department had a
presumption against such a move. Now, notice will be given
unless prosecutors can show that it would "present a clear and
substantial threat to the integrity of the investigation," the
The attorney general would have to sign off on such a
finding. Previously, it was the head of the criminal division.
Holder said the department had gone as far as it could go
within existing law in seeking to protect journalists. A
proposed media shield law, which Obama has said he supports,
would go further, Holder said.
As part of the review process, Holder met with
representatives of various media organizations, including
Holder has said that prosecutors followed all laws and
guidelines in recent cases. He personally authorized the
searches of Fox News records, while his deputy, James Cole,
authorized the search of Associated Press records.
Existing Justice Department guidelines allow searches under
rare circumstances, usually with notice to the news organization
In the Associated Press case, investigators focused on how
reporters learned about a U.S. operation in Yemen to foil a plot
to bomb an airliner, government officials have said. An AP story
in May 2012 described the plot. The AP has reported that it
delayed publishing the story at the request of government
officials until security concerns were allayed.
U.S. officials have said, however, that the leak compromised
a U.S. agent working to undermine the Yemen-based group Al Qaeda
in the Arabian Peninsula.
In the Fox case, Rosen, who was not prosecuted, had reported
secret views of U.S. intelligence officials about North Korea.
The Justice Department is prosecuting Stephen Kim, a former
State Department contract analyst, for leaking the information
(Additional reporting by Steve Holland and Diane Bartz; Edited
by Howard Goller, David Storey and Eric Walsh)