Attorney general sets new limits for when the DOJ can seize reporters' records

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The Department of Justice will no longer use compulsory legal processes to seize information from people working in the news media who are acting “within the scope of their newsgathering activities,” Attorney General Merrick Garland announced in a memo on Monday.

This new policy imposes further limits on when the DOJ can seize reporters’ records, a long-debated political issue balancing freedom of the press and government intelligence. The Justice Department under President Biden previously vowed not to secretly investigate reporters’ records. The previous department under Donald Trump seized the records of reporters in secret during a leak investigation, a policy Biden has criticized.

“Because a free and independent press is vital to the functioning of our democracy, the Department of Justice has long employed procedural protections and a balancing test to restrict the use of compulsory process to obtain information from or records of members of the news media,” Garland said in the memo.

“There are, however, shortcomings to any balancing test in this context,” he continued, explaining that such a balancing test can “fail to properly weight the important national interest in protecting journalists from compelled disclosure of information revealing their sources, sources they need to apprise the American people of the workings of their government.”

The DOJ qualified that this doesn’t apply to members of the media who are the subject or target of an investigation, so long as the status is not based on or within newsgathering activities. The new rules also don’t apply to entities or individuals in terrorist groups, when the news media agrees to provide records with a subpoena, when the DOJ seeks already-published records or information for authentication, or when compulsory legal process is needed to “prevent an imminent risk of death or serious bodily harm.”

The attorney general said in the memo that the deputy attorney general will undertake a review of the media protections. Garland said the DOJ will also support congressional action to “embody protections in law.”

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