The U.S. Justice Department has banned the use of subpoenas, warrants or court orders to seize reporters’ communications records or demand their notes or testimony in an effort to uncover confidential sources in leak investigations. The rules institutionalize and expand a temporary policy that Attorney General Merrick Garland put in place last year after the revelation that DOJ, under Attorney General William Barr, had secretly pursued email records of New York Times, Washington Post and CNN reporters, the Times reports. “These regulations recognize the crucial role that a free and independent press plays in our democracy,” Garland said. “Because freedom of the press requires that members of the news media have the freedom to investigate and report the news, the new regulations are intended to provide enhanced protection to members of the news media from certain law enforcement tools and actions that might unreasonably impair news gathering.”
The broad prohibitions are a major change in how DOJ approaches leak investigations in a crackdown that spans administrations of both parties and has put pressure on reporting on matters of national security. New York Times publisher A.G. Sulzberger, who was put under a gag order in 2021 that shielded from his own newsroom a legal fight over the email logs of Times journalists, praised the new policy while calling on Congress to pass a law further strengthening such protections. Exceptions to the policy are narrow. It does not apply to situations in which a reporter is under investigation for something unconnected to news gathering, a member of the news media is agent of a foreign power or a member of a foreign terrorist group, or “when necessary to prevent an imminent or concrete risk of death or serious bodily harm.” The Justice Department developed the regulation in consultation with press freedom advocates like Bruce Brown of the Reporters Committee for Freedom of the Press. Garland met with representatives from eight news organizations.