News Media Now Protected by New Restrictions Passed by Attorney General – But There Are Exceptions

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Merrick Garland; Photo by Susan Walsh – AP

By Genesis Guzman and Natalia Claburn

WASHINGTON DC – Compulsory legal process is now prohibited to be used as a means to obtain information from people involved with news media—although there are lots of exceptions.

In a statement released on Monday, the Office of the Attorney General informed the public that the Department of Justice will “no longer use compulsory legal process” related to individuals involved in news media or activities related to news gathering.

The right to compulsory process is defined as “the method employed by which a person wanted as a witness, or for some other purpose, in a civil or criminal action is forced to appear before the court hearing the proceeding.”

Compulsory process was initially created because, despite the fact that “a free and independent press is vital to the functioning of our democracy,” there was a need for holding individuals involved in the news media accountable to protect “national security information against unauthorized disclosure.”

Since the creation of compulsory legal process, there have been “procedural protections and a balancing test” that the DOJ has long-employed to allegedly ensure that all court proceedings are constitutional and fair.

However, it was revealed that there are many shortcomings to using a balancing test to determine whether or not the information that a source may reveal is genuinely a threat to national security or if preventing that individual from doing so is an impediment on their constitutional rights.

As explained in the statement, “a balancing test may fail to properly weigh 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.”

This information led the DOJ to adopt a new policy on compulsory process. “Prohibition on the Use of Compulsory Process” was the first section of the guidelines for outlining what this policy entails.

First, it was stated that the Department of Justice is no longer using compulsory process for the purpose of obtaining information from or records of members of the news media acting within the scope of news gathering activities.”

Next, the people this prohibition applies to those outlined, which included “reporters directly, to their publishers or employers, and to third-party service providers of any of the foregoing.”

The statement highlighted that the prohibition extended to “subpoenas, warrants, and civil investigative demands” as well as court orders that have been “issued pursuant to 18 U.S.C. § 2703(d) and § 3123.” This policy applies regardless of the court’s request for “testimony, physical documents, telephone toll records, metadata, or digital content.”

But nevertheless, if an individual involved in news media is “the subject or target of an investigation,” this prohibition policy of obtaining information from or records of that individual does not apply.

This policy also does not apply if a news media member “is under investigation for a violation of criminal law, such as insider trading” as well as a person “who has used criminal methods, such as breaking and entering, to obtain government information.”

Furthermore, possessing or publishing government information, including classified information, will result in this prohibition no longer applying.

It was noted that in an instance where a government employee unlawfully discloses government information instead of a member of the news media, the DOJ has maintained the ability “to use compulsory legal process to obtain information from or records” from that individual.

This prohibition has some exceptions, some of which are that it does not extend to agents of a foreign powers or members of foreign terrorist organizations, and members of the news media who have consented to release the requested information with a compulsory process.

Similarly, information that has already been published for the purpose of verification, or when it is necessary in order to prevent an imminent risk of death or serious bodily harm of a person, community or minors are also exceptions to this prohibition.

In circumstances where compulsory legal process is still permitted, current approval requirements continue to apply. Furthermore, while regulations are still being drafted, additional advance approval must be obtained from the Deputy Attorney General in order to use any compulsory legal process to obtain information from a member of the news media.

The Deputy Attorney General will conduct a review process that will explain and develop the protection previously stated.

The Deputy Attorney General will review existing regulations and examine how those existing regulations will be “tightened in the limited circumstances in which it remains permissible to use compulsory legal process.”

The review will also indicate whether there are any more forms of legal process similar to the current memorandum that should be further restricted.

Along with those revisions, the Deputy Attorney General’s review will also examine the procedures used to protect the information from members of the news media obtained by compulsory legal process in the circumstances where it is still available to do so.

This examination will also develop procedures for the handling of the information or records after use, by either destruction or returning.

Finally, in order to make sure that the restrictions for the use of compulsory legal process are protected, the Department will support congressional legislation that will incorporate the restrictions in law.

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About The Author

Genesis Guzman is a sophmore at UC Davis, majoring in English and Political Science. She is from Los Angeles, CA and hopes to attend law school in the future.

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