Faced with intense criticism for trampling basic press freedoms while chasing government leakers, the Obama Administration has announced tougher rules to protect news media from federal criminal investigators.
The new guidelines, if followed, would make it harder to review secretly a media organization’s emails, phone or business records, or other communications. Attorney General Eric Holder’s office promises that “members of the news media will not be subject to prosecution based solely on news-gathering activities.”
That should have been the proper interpretation of the Justice Department’s guidelines all along. Instead, department lawyers interpreted those guidelines in ways that allowed them not only to pursue individuals who released government secrets illegally, but also to compel evidence from journalists who published leaked material. The new guidelines try to clarify vague wording that allowed for the misreading.
Last May, Justice Department officials informed the Associated Press that federal investigators had been secretly combing through the news organization’s phone records as part of a leak inquiry that started in 2012.
Federal prosecutors also acknowledged that in 2010, they were granted permission by a judge to examine the emails of James Rosen of Fox News. In that case, Justice Department officials argued they needed the media information because there was “probable cause to believe” that Mr. Rosen was “an aider and abettor and/or co-conspirator” in the leak.
Administration officials later insisted that they had no plans to charge Mr. Rosen in the case. They said they were simply using that portrayal of the reporter to get a judge to allow access to his emails.
Mr. Holder stressed last week that in most cases, a media outlet would be informed about any request for email or other data in advance. That would give journalists a chance to challenge the government in court. The new guidelines would make it more difficult — but not impossible — for investigators to see reporters’ records secretly.
The rules would allow these secret reviews “as an extraordinary measure” only if the attorney general agrees there are “compelling reasons.” Even in such circumstances, an impartial judge should decide whether investigators can see news media records secretly.
As the Reporters Committee for Freedom of the Press noted, such independent judicial oversight is necessary because “so many important rights hinge on the ability to test the government’s need for records before they are seized.”
Mr. Holder and White House officials have said that in addition to guidelines, which can be easily changed, Congress should pass a law shielding journalists from government investigators. A shield law would be important if it protected journalists, sources, and records.
But it must be done right, and, so far, Congress is not there yet.
— New York Times