Rule2022-23679
Policy Regarding Obtaining Information From or Records of Members of the News Media; and Regarding Questioning, Arresting, or Charging Members of the News Media
Primary source
Metadata and text below are from the Federal Register, a public-domain U.S. government work. Always verify the official published version before relying on it for any legal matter.
Published
November 3, 2022
Effective
November 3, 2022
Issuing agencies
Justice Department
Abstract
This rule amends the regulations setting forth the policy of the Department of Justice regarding the use of compulsory legal process, including subpoenas, search warrants, and certain court orders for the purpose of obtaining information from or records of members of the news media. The rule also amends the Department's regulations establishing its policy regarding questioning, arresting, or charging members of the news media.
Full Text
<html>
<head>
<title>Federal Register, Volume 87 Issue 212 (Thursday, November 3, 2022)</title>
</head>
<body><pre>
[Federal Register Volume 87, Number 212 (Thursday, November 3, 2022)]
[Rules and Regulations]
[Pages 66239-66244]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2022-23679]
=======================================================================
-----------------------------------------------------------------------
DEPARTMENT OF JUSTICE
28 CFR Part 50
[Docket No. OAG 179; AG Order No. 5524-2022]
Policy Regarding Obtaining Information From or Records of Members
of the News Media; and Regarding Questioning, Arresting, or Charging
Members of the News Media
AGENCY: Office of the Attorney General, Department of Justice.
ACTION: Final rule.
-----------------------------------------------------------------------
SUMMARY: This rule amends the regulations setting forth the policy of
the Department of Justice regarding the use of compulsory legal
process, including subpoenas, search warrants, and certain court orders
for the purpose of obtaining information from or records of members of
the news media. The rule
[[Page 66240]]
also amends the Department's regulations establishing its policy
regarding questioning, arresting, or charging members of the news
media.
DATES: This rule is effective on November 3, 2022.
FOR FURTHER INFORMATION CONTACT: Ashley Dugger, Acting Director, Office
of Enforcement Operations, Criminal Division, (202) 514-6809.
SUPPLEMENTARY INFORMATION:
Discussion
On July 19, 2021, the Attorney General issued a memorandum revising
the Department's policy regarding the use of compulsory legal process
for the purpose of obtaining information from or records of members of
the news media. The memorandum asked the Deputy Attorney General to
undertake a review process to further explain, develop, and codify in
regulations the protections provided for in the memorandum. After the
conclusion of that review and consultation with relevant internal and
external stakeholders, the Attorney General is issuing this final rule
to revise the existing provisions in the Department's regulations at 28
CFR 50.10.
The revisions replace the regulations' prior balancing test and
codify the Attorney General's July 2021 directive that the Department
of Justice will no longer use compulsory legal process for the purpose
of obtaining information from or records of members of the news media
acting within the scope of newsgathering, except in limited
circumstances. Other revisions are intended to clarify the scope of the
policy, specify the approvals required in the circumstances in which
compulsory legal process is allowed, tighten procedures for the review
and safeguarding of information, and fill gaps in the previous
regulations.
Regulatory Certifications
Administrative Procedure Act, 5 U.S.C. 553
Because, for purposes of the Administrative Procedure Act, this
regulation concerns general statements of policy, or rules of agency
organization, procedure, or practice, notice and comment and a delayed
effective date are not required. See 5 U.S.C. 553(b)(A), (d).
Regulatory Flexibility Act
Because this final rule is not promulgated as a final rule under 5
U.S.C. 553 and was not required under that section to be published as a
proposed rule, the requirements for the preparation of a regulatory
flexibility analysis under 5 U.S.C. 604(a) do not apply. In any event,
the Attorney General, in accordance with 5 U.S.C. 605(b), has reviewed
this regulation and by approving it certifies that this regulation will
not have a significant economic impact on a substantial number of small
entities because it pertains to administrative matters affecting the
Department.
Executive Orders 12866 and 13563--Regulatory Planning and Review
This action has been drafted and reviewed in accordance with
Executive Order 12866 of September 30, 1993, Regulatory Planning and
Review, section 1(b), Principles of Regulation.
This rule is limited to agency organization, management, or
personnel matters as described by section 3(d)(3) of Executive Order
12866, and therefore is not a ``regulation'' as defined by that
Executive order. Accordingly, this action has not been reviewed by the
Office of Management and Budget.
Executive Order 12988--Civil Justice Reform
This regulation meets the applicable standards set forth in
sections 3(a) and 3(b)(2) of Executive Order 12988 of February 5, 1996.
Executive Order 13132--Federalism
This regulation will not have substantial direct effects on the
States, on the relationship between the National Government and the
States, or on distribution of power and responsibilities among the
various levels of government. Therefore, in accordance with Executive
Order 13132 of August 4, 1999, this rule does not have sufficient
federalism implications to warrant the preparation of a federalism
assessment.
Unfunded Mandates Reform Act of 1995
This rule will not result in the expenditure by State, local, and
tribal governments, in the aggregate, or by the private sector, of $100
million or more in any one year, and it will not significantly or
uniquely affect small governments. Therefore, no actions were deemed
necessary under the provisions of the Unfunded Mandates Reform Act of
1995, Public Law 104-4.
Congressional Review Act
This action pertains to agency management and does not
substantially affect the rights or obligations of non-agency parties;
accordingly, this action is not a ``rule'' as that term is used by the
Congressional Review Act (Subtitle E of the Small Business Regulatory
Enforcement Fairness Act of 1996 (SBREFA)). Therefore, the reporting
requirement of 5 U.S.C. 801 does not apply.
List of Subjects in 28 CFR Part 50
Administrative practice and procedure, Crime, Media, News, Search
warrants, Subpoena.
Accordingly, for the reasons stated in the preamble, part 50 of
title 28 of the Code of Federal Regulations is amended as follows:
PART 50--STATEMENTS OF POLICY
0
1. The authority citation for part 50 continues to read as follows:
Authority: 5 U.S.C. 301; 18 U.S.C. 1162; 28 U.S.C. 509, 510,
516, and 519; 42 U.S.C. 1921 et seq., 1973c; and Pub. L. 107-273,
116 Stat. 1758, 1824.
0
2. Section 50.10 is revised to read as follows:
Sec. 50.10 Policy regarding obtaining information from or records of
members of the news media; and regarding questioning, arresting, or
charging members of the news media.
(a) Statement of principles. (1) A free and independent press is
vital to the functioning of our democracy. Because freedom of the press
can be no broader than the freedom of members of the news media to
investigate and report the news, the Department's policy is intended to
provide protection to members of the news media from certain law
enforcement tools and actions, whether criminal or civil, that might
unreasonably impair newsgathering. The policy is not intended to shield
from accountability members of the news media who are subjects or
targets of a criminal investigation for conduct outside the scope of
newsgathering.
(2) The Department recognizes 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. For this reason, with the
exception of certain circumstances set out in this section, the
Department of Justice will not use compulsory legal process for the
purpose of obtaining information from or records of members of the news
media acting within the scope of newsgathering.
(3) In determining whether to seek, when permitted by this policy,
information from or records of members of the news media, the
Department must consider several vital interests: protecting national
security, ensuring public safety, promoting effective law enforcement
and the fair administration
[[Page 66241]]
of justice, and safeguarding the essential role of a free press in
fostering Government accountability and an open society, including by
protecting members of the news media from compelled disclosure of
information revealing their sources. These interests have long informed
the Department's view that the use of compulsory legal process to seek
information from or records of non-consenting members of the news media
constitutes an extraordinary measure, not a standard investigatory
practice.
(b) Scope and definitions--(1) Covered persons and entities. The
policy in this section governs the use of certain law enforcement tools
and actions, whether criminal or civil, to obtain information from or
records of members of the news media.
(2) Definitions. (i) Compulsory legal process consists of
subpoenas, search warrants, court orders issued pursuant to 18 U.S.C.
2703(d) and 3123, interception orders issued pursuant to 18 U.S.C.
2518, civil investigative demands, and mutual legal assistance treaty
requests--regardless of whether issued to members of the news media
directly, to their publishers or employers, or to others, including
third-party service providers of any of the forgoing, for the purpose
of obtaining information from or records of members of the news media,
and regardless of whether the compulsory legal process seeks testimony,
physical or electronic documents, telephone toll or other
communications records, metadata, or digital content.
(ii) Newsgathering is the process by which a member of the news
media collects, pursues, or obtains information or records for purposes
of producing content intended for public dissemination.
(A) Newsgathering includes the mere receipt, possession, or
publication by a member of the news media of Government information,
including classified information, as well as establishing a means of
receiving such information, including from an anonymous or confidential
source.
(B) Except as provided in paragraph (b)(2)(ii)(A) of this section,
newsgathering does not include criminal acts committed in the course of
obtaining information or using information, such as: breaking and
entering; theft; unlawfully accessing a computer or computer system;
unlawful surveillance or wiretapping; bribery; extortion; fraud;
insider trading; or aiding or abetting or conspiring to engage in such
criminal activities, with the requisite criminal intent.
(3) Exclusions. (i) The protections of the policy in this section
do not extend to any person or entity where there is a reasonable
ground to believe the person or entity is:
(A) A foreign power or agent of a foreign power, as those terms are
defined in section 101 of the Foreign Intelligence Surveillance Act of
1978 (50 U.S.C. 1801);
(B) A member or affiliate of a foreign terrorist organization
designated under section 219(a) of the Immigration and Nationality Act
(8 U.S.C. 1189(a));
(C) Designated as a Specially Designated Global Terrorist by the
Department of the Treasury under Executive Order 13224 of September 23,
2001, 3 CFR, 2001 Comp., p. 786;
(D) A specially designated terrorist as that term is defined in 31
CFR 595.311;
(E) A terrorist organization as that term is defined in section
212(a)(3)(B)(vi) of the Immigration and Nationality Act (8 U.S.C.
1182(a)(3)(B)(vi));
(F) Committing or attempting to commit a crime of terrorism, as
that offense is described in 18 U.S.C. 2331(5) or 2332b(g)(5);
(G) Committing or attempting to commit the crimes of providing
material support or resources to terrorists or designated foreign
terrorist organizations, providing or collecting funds to finance acts
of terrorism, or receiving military-type training from a foreign
terrorist organization, as those offenses are defined in 18 U.S.C.
2339A, 2339B, 2339C, and 2339D; or
(H) Aiding, abetting, or conspiring in illegal activity with a
person or organization described in paragraphs (b)(3)(i)(A) through (G)
of this section.
(ii) The determination that an exclusion in paragraph (b)(3)(i) of
this section applies must be made by the Assistant Attorney General for
National Security.
(c) Compulsory legal process for the purpose of obtaining
information from or records of a member of the news media acting within
the scope of newsgathering. Compulsory legal process for the purpose of
obtaining information from or records of a member of the news media
acting within the scope of newsgathering is prohibited except under the
circumstances set forth in paragraphs (c)(1) through (3) of this
section. (Note that the prohibition in this paragraph (c) on using
compulsory legal process applies when a member of the news media has,
in the course of newsgathering, only received, possessed, or published
government information, including classified information, or has
established a means of receiving such information, including from an
anonymous or confidential source.) The Department may only use
compulsory legal process for the purpose of obtaining information from
or records of a member of the news media acting within the scope of
newsgathering, as follows:
(1) To authenticate for evidentiary purposes information or records
that have already been published, in which case the authorization of a
Deputy Assistant Attorney General for the Criminal Division is
required;
(2) To obtain information or records after a member of the news
media agrees to provide or consents to the provision of the requested
records or information in response to the proposed compulsory legal
process, in which case authorization as described in paragraph (i) of
this section is required; or
(3) When necessary to prevent an imminent or concrete risk of death
or serious bodily harm, including terrorist acts, kidnappings,
specified offenses against a minor (as defined in 34 U.S.C. 20911(7)),
or incapacitation or destruction of critical infrastructure (as defined
in 42 U.S.C. 5195c(e)), in which case the authorization of the Attorney
General is required.
(d) Compulsory legal process for the purpose of obtaining
information from or records of a member of the news media not acting
within the scope of newsgathering. (1) The Department may only use
compulsory legal process for the purpose of obtaining information from
or records of a member of the news media who is not acting within the
scope of newsgathering:
(i) When the member of the news media is the subject or target of
an investigation and suspected of having committed an offense;
(ii) To obtain information or records of a non-member of the news
media, when the non-member is the subject or target of an investigation
and the information or records are in a physical space, device, or
account shared with a member of the news media;
(iii) To obtain purely commercial, financial, administrative,
technical, or other information or records unrelated to newsgathering;
or for information or records relating to personnel not involved in
newsgathering;
(iv) To obtain information or records related to public comments,
messages, or postings by readers, viewers, customers, or subscribers,
over which a member of the news media does not exercise editorial
control prior to publication;
(v) To obtain information or records of a member of the news media
who may be a victim of or witness to crimes or
[[Page 66242]]
other events, or whose premises may be the scene of a crime, when such
status (as a victim or witness or crime scene) is not based on or
within the scope of newsgathering; or
(vi) To obtain only subscriber and other information described in
18 U.S.C. 2703(c)(2)(A), (B), (D), (E), and (F).
(2) Compulsory legal process under paragraph (d)(1) of this section
requires the authorization of a Deputy Assistant Attorney General for
the Criminal Division, except that:
(i) To obtain information or records after a member of the news
media agrees to provide or consents to the provision of the requested
records or information in response to the proposed compulsory legal
process, such compulsory legal process requires authorization as
described in paragraph (i) of this section governing voluntary
questioning and compulsory legal process following consent by a member
of the news media; and
(ii) To seek a search warrant for the premises of a news media
entity requires authorization by the Attorney General.
(e) Matters where there is a close or novel question as to the
person's or entity's status as a member of the news media or whether
the member of the news media is acting within the scope of
newsgathering. (1) When there is a close or novel question as to the
person's or entity's status as a member of the news media, the
determination of such status must be approved by the Assistant Attorney
General for the Criminal Division.
(2) When there is a close or novel question as to whether the
member of the news media is acting within the scope of newsgathering,
the determination of such status must be approved by the Assistant
Attorney General for the Criminal Division. When the Assistant Attorney
General finds that there is genuine uncertainty as to whether the
member of the news media is acting within the scope of newsgathering,
the determination of such status must be approved by the Attorney
General.
(f) Compelled testimony. (1) Except as provided in paragraph (f)(2)
of this section, members of the Department must obtain the
authorization of the Deputy Attorney General when seeking to compel
grand jury or trial testimony otherwise permitted by this section from
any member of the news media.
(2) When the compelled testimony under paragraph (f)(1) of this
section has no nexus to the person's or entity's activities as a member
of the news media, members of the Department must obtain the
authorization of a Deputy Assistant Attorney General for the Criminal
Division and provide prior notice to the Deputy Attorney General.
(3) Such authorization may only be granted when all other
requirements of this policy regarding compulsory legal process have
been satisfied.
(g) Exhaustion. (1) Except as provided in paragraph (g)(2) of this
section, the official authorizing the compulsory legal process must
find the following exhaustion conditions are met:
(i) The Government has exhausted all reasonable avenues to obtain
the information from alternative, non-news-media sources.
(ii) The Government has pursued negotiations with the member of the
news media in an attempt to secure the member of the news media's
consent to the production of the information or records to be sought
through compulsory legal process, unless the authorizing official
determines that, for compelling reasons, such negotiations would pose a
clear and substantial threat to the integrity of the investigation or
pose the risks described in paragraph (c)(3) of this section. Where the
nature of the investigation permits, the Government must have explained
to the member of the news media the Government's need for the
information sought in a particular investigation or prosecution, as
well as its willingness or ability to address the concerns of the
member of the news media.
(iii) The proposed compulsory legal process is narrowly drawn. It
must be directed at material and relevant information regarding a
limited subject matter, avoid interference with unrelated
newsgathering, cover a reasonably limited period of time, avoid
requiring production of a large volume of material, and give reasonable
and timely notice of the demand as required by paragraph (j) of this
section.
(2) When the process is sought pursuant to paragraph (d)(1), (i),
or (l) of this section, the authorizing official is not required to
find that the exhaustion conditions in paragraphs (g)(1)(i) and (ii) of
this section have been satisfied, but should consider requiring those
conditions as appropriate.
(h) Standards for authorizing compulsory legal process. (1) In all
matters covered by this section, the official authorizing the
compulsory legal process must take into account the principles set
forth in paragraph (a) of this section.
(2) Except as provided in paragraph (h)(3) of this section, when
the member of the news media is not the subject or target of an
investigation and suspected of having committed an offense, the
official authorizing the compulsory legal process must take into
account the following considerations:
(i) In criminal matters, there must be reasonable grounds to
believe, based on public information or information from non-news-media
sources, that a crime has occurred, and that the information sought is
essential to a successful investigation or prosecution. The compulsory
legal process may not be used to obtain peripheral, nonessential, or
speculative information.
(ii) In civil matters, there must be reasonable grounds to believe,
based on public information or information from non-news-media sources,
that the information sought is essential to the successful completion
of the investigation or litigation in a case of substantial importance.
The compulsory legal process may not be used to obtain peripheral,
nonessential, cumulative, or speculative information.
(3) When paragraph (h)(2) of this section would otherwise apply,
but the compulsory legal process is sought pursuant to paragraph (i) or
(l) of this section, the authorizing official is not required to, but
should, take into account whether the information sought is essential
to a successful investigation, prosecution, or litigation as described
in paragraphs (h)(2)(i) and (ii) of this section.
(4) When the member of the news media is the subject or target of
an investigation and suspected of having committed an offense, before
authorizing compulsory legal process, the authorizing official is not
required to, but should, take into account the considerations set forth
in paragraphs (h)(2)(i) and (ii) of this section as appropriate.
(i) Voluntary questioning and compulsory legal process following
consent by a member of the news media. (1) When the member of the news
media is not the subject or target of an investigation and suspected of
having committed an offense, authorization by a United States Attorney
or Assistant Attorney General responsible for the matter must be
obtained in order to question a member of the news media on a voluntary
basis, or to use compulsory legal process if the member of the news
media agrees to provide or consents to the provision of the requested
records or information in response to the proposed process. When there
is any nexus to the person's activities as a member of the news media,
such authorization must be preceded by consultation with the Criminal
Division.
(2) When the member of the news media is the subject or target of
an
[[Page 66243]]
investigation and suspected of having committed an offense,
authorization by a Deputy Assistant Attorney General for the Criminal
Division must be obtained in order to question a member of the news
media on a voluntary basis, or to use compulsory legal process if the
member of the news media agrees to provide or consents to the provision
of the requested records or information in response to the proposed
process.
(j) Notice of compulsory legal process to the affected member of
the news media. (1) Members of the Department must provide notice to
the affected member of the news media prior to the execution of
authorized compulsory legal process under paragraph (c) of this section
unless the authorizing official determines that, for compelling
reasons, such notice would pose the risks described in paragraph (c)(3)
of this section.
(2) Members of the Department must provide notice prior to the
execution of compulsory legal process authorized under paragraphs
(d)(1)(ii) through (vi) of this section to a member of the news media
that is not the subject or target of an investigation and suspected of
having committed an offense, unless the authorizing official determines
that, for compelling reasons, such notice would pose a clear and
substantial threat to the integrity of the investigation or would pose
the risks described in paragraph (c)(3) of this section and so informs
the Deputy Attorney General in advance.
(3) If the member of the news media has not been given notice under
paragraph (j)(1) or (2) of this section, the United States Attorney or
Assistant Attorney General responsible for the matter must provide
notice to the member of the news media as soon as it is determined that
such notice would no longer pose the concerns described in paragraph
(j)(1) or (2) of this section, as applicable.
(4) In any event, such notice must be given to the affected member
of the news media within 45 days of the Government's receipt of a
complete return made pursuant to all forms of compulsory legal process
included in the same authorizing official's authorization under
paragraph (c) or (d)(1)(ii) through (vi) of this section, except that
the authorizing official may authorize delay of notice for one
additional 45-day period if the official determines that, for
compelling reasons, such notice continues to pose the same concerns
described in paragraph (j)(1) or (2) of this section, as applicable.
(5) Members of the Department are not required to provide notice to
the affected member of the news media of compulsory legal process that
was authorized under paragraph (d)(1)(i) of this section if the
affected member of the news media is the subject or target of an
investigation and suspected of having committed an offense.
(i) The authorizing official may nevertheless direct that notice be
provided to the affected member of the news media.
(ii) If the authorizing official does not direct that such notice
be provided, the official must so inform the Deputy Attorney General,
and members of the Department who are responsible for the matter must
provide the authorizing official with an update every 90 days regarding
the status of the investigation. That update must include an assessment
of any harm to the investigation that would be caused by providing
notice to the member of the news media. The authorizing official will
consider such update in determining whether to direct that notice be
provided.
(6) Notice under the policy in this section may be given to the
affected member of the news media or a current employer of that member
if that employer is also a member of the news media.
(7) A copy of any notice to be provided to a member of the news
media shall be provided to the Director of the Office of Public Affairs
and to the Director of the Criminal Division's Office of Enforcement
Operations at least 10 business days before such notice is provided,
and immediately after such notice is provided to the member of the news
media.
(k) Non-disclosure orders. (1) In seeking authorization to use
compulsory legal process to obtain information from or the records of a
member of the news media, members of the Department must indicate
whether they intend to seek an order directing the recipient of the
compulsory legal process not to disclose the existence of the
compulsory legal process to any other person or entity and shall
articulate the need for such non-disclosure order.
(2) An application for a non-disclosure order sought in connection
with compulsory legal process under paragraph (c) of this section may
only be authorized if the authorizing official determines that, for
compelling reasons, disclosure would pose the risks described in
paragraph (c)(3) of this section and the application otherwise complies
with applicable statutory standards and Department policies.
(3) An application for a non-disclosure order sought in connection
with compulsory legal process under paragraphs (d)(1)(ii) through (vi)
of this section regarding a member of the news media that is not the
subject or target of an investigation and suspected of having committed
an offense may only be authorized if the authorizing official
determines that, for compelling reasons, disclosure would pose a clear
and substantial threat to the integrity of the investigation or would
pose the risks described in paragraph (c)(3) of this section and the
application otherwise complies with applicable statutory standards and
Department policies.
(4) An application for a non-disclosure order sought in connection
with compulsory legal process under paragraph (d)(1)(i) of this section
regarding a member of the news media that is a subject or target of an
investigation and suspected of having committed an offense may be
authorized if the application otherwise complies with applicable
statutory standards and Department policies.
(5) Members of the Department must move to vacate any non-
disclosure order when notice of compulsory legal process to the
affected member of media is required (after any extensions permitted)
by paragraph (j) of this section.
(l) Exigent circumstances involving risk of death or serious bodily
harm. (1) A Deputy Assistant Attorney General for the Criminal Division
may authorize the use of compulsory legal process that would otherwise
require authorization from the Attorney General or the Deputy Attorney
General if the Deputy Assistant Attorney General for the Criminal
Division determines that:
(i) The exigent use of such compulsory legal process is necessary
to prevent the risks described in paragraph (c)(3) of this section; and
(ii) Those exigent circumstances require the use of such compulsory
legal process before the authorization of the Attorney General or the
Deputy Attorney General can, with due diligence, be obtained.
(2) In authorizing the exigent use of compulsory legal process, a
Deputy Assistant Attorney General for the Criminal Division should take
into account the principles set forth in paragraph (a) of this section;
ensure that the proposed process is narrowly tailored to retrieve
information or records required to prevent or mitigate the associated
imminent risk; and require members of the Department to comply with the
safeguarding protocols described in paragraph (p) of this section.
(3) As soon as possible after the approval by a Deputy Assistant
Attorney General for the Criminal Division of a request under paragraph
(l)(1) of this section, the Deputy Assistant Attorney General must
provide notice to the
[[Page 66244]]
designated authorizing official, the Deputy Attorney General, and the
Director of the Office of Public Affairs. Within 10 business days of
the authorization under paragraph (l)(1) of this section, the United
States Attorney or Assistant Attorney General responsible for the
matter shall provide a statement to the designated authorizing official
containing the information that would have been provided in a request
for prior authorization.
(m) Arresting or charging a member of the news media. (1) Except as
provided in paragraph (m)(2) of this section or in circumstances in
which prior authorization is not possible, members of the Department
must obtain the authorization of the Deputy Attorney General to seek a
warrant for an arrest, conduct an arrest, present information to a
grand jury seeking a bill of indictment, or file an information against
a member of the news media.
(2) Except in circumstances in which prior authorization is not
possible, when the arrest or charging of a member of the news media
under paragraph (m)(1) of this section has no nexus to the person's or
entity's activities as a member of the news media, members of the
Department must obtain the authorization of a Deputy Assistant Attorney
General for the Criminal Division and provide prior notice to the
Deputy Attorney General.
(3) When prior authorization was not possible, the member of the
Department must ensure that the designated authorizing official is
notified as soon as possible.
(n) Applications for authorizations under this section. (1)
Whenever any authorization is required under this section, the
application must be personally approved in writing by the United States
Attorney or Assistant Attorney General responsible for the matter.
(2) Whenever the authorizing official under this section is the
Attorney General or the Deputy Attorney General, the application must
also be personally approved in a memorandum by the Assistant Attorney
General for the Criminal Division.
(3) The member of the Department requesting authorization must
provide all facts and applicable legal authority necessary for the
authorizing official to make the necessary determinations, as well as
copies of the proposed compulsory legal process and any other related
filings.
(4) Whenever an application for any authorization is made to the
Attorney General or the Deputy Attorney General under this section, the
application must also be provided to the Director of the Office of
Public Affairs for consultation.
(o) Filter protocols. (1) In conjunction with the use of compulsory
legal process, the use of filter protocols, including but not limited
to keyword searches and filter teams, may be necessary to minimize the
potential intrusion into newsgathering-related materials that are
unrelated to the conduct under investigation.
(2) While the use of filter protocols should be considered in all
matters involving a member of the news media, the use of such protocols
must be balanced against the need for prosecutorial flexibility and the
recognition that investigations evolve, and should be tailored to the
facts of each investigation.
(3) Unless compulsory legal process is sought pursuant to paragraph
(i) or (l) of this section, members of the Department must use filter
protocols when the compulsory legal process relates to a member of the
news media acting within the scope of newsgathering or the compulsory
legal process could potentially encompass newsgathering-related
materials that are unrelated to the conduct under investigation. The
Attorney General or the Deputy Attorney General may waive the use of
filter protocols only upon an express finding that there is a de
minimis risk that newsgathering-related materials that are unrelated to
the conduct under investigation would be obtained pursuant to the
compulsory legal process and that any filter protocol would pose a
substantial and unwarranted investigative burden.
(4) Members of the Department should consult the Justice Manual for
guidance regarding the use of filter protocols to protect
newsgathering-related materials that are unrelated to the conduct under
investigation.
(p) Safeguarding. Any information or records that might include
newsgathering-related materials obtained from a member of the news
media or from third parties pursuant to the policy in this section must
be closely held so as to prevent disclosure of the information to
unauthorized persons or for improper purposes. Members of the
Department must consult the Justice Manual for specific guidance
regarding the safeguarding of information or records obtained from a
member of the news media or from third parties pursuant to this section
and regarding the destruction and return of information or records as
permitted by law.
(q) Privacy Protection Act. All authorizations pursuant to this
section must comply with the provisions of the Privacy Protection Act
(PPA), 42 U.S.C. 2000aa(a) et seq. Members of the Department must
consult the Justice Manual for specific guidance on complying with the
PPA. Among other things, members of the Department are not authorized
to apply for a warrant to obtain work product materials or other
documentary materials of a member of the news media under the PPA
suspect exception, see 42 U.S.C. 2000aa(a)(1) and (b)(1), if the sole
purpose is to further the investigation of a person other than the
member of the news media.
(r) Anti-circumvention. Members of the Department shall not direct
any third party to take any action that would violate a provision of
this section if taken by a member of the Department.
(s) Failure to comply. Failure to obtain the prior authorization
required by this section may constitute grounds for an administrative
reprimand or other appropriate disciplinary action.
(t) General provision. This section is not intended to, and does
not, create any right or benefit, substantive or procedural,
enforceable at law or in equity by any party against the United States,
its departments, agencies, or entities, its officers, employees, or
agents, or any other person.
Dated: October 26, 2022.
Merrick B. Garland,
Attorney General.
[FR Doc. 2022-23679 Filed 11-2-22; 8:45 am]
BILLING CODE 4410-14-P
</pre></body>
</html>Indexed from Federal Register on November 3, 2022.
This is legal information, not legal advice. Laws vary by jurisdiction and change frequently. Always verify current law with official sources and consult a licensed attorney in your jurisdiction for advice on your specific situation.