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May 29, 2024

US Attorney General – Prohibition on the Use of Compulsory Process To Obtain Information From, or Records of Members of the News Media

By Kirk Allen & John Kraft

On July 19, 2021

U.S. – (ECWd) –

“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.”

“There are, however, shortcomings to any balancing test in this context. The United States has, of course, an important national interest in protecting national security information against unauthorized disclosure. But a balancing test may 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. To better protect that interest, the Department is now adopting the following policy:

A. Prohibition on the Use of Compulsory Process

  1. 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 activities, as set out below.
  2. This new prohibition applies to compulsory legal process issued to reporters directly, to their publishers or employers, and to third-party service providers of any of the foregoing. It extends to the full range of compulsory process covered by the current regulations, specifically, subpoenas, warrants, court orders issued pursuant to 18 U.S.C. § 2703(d) and§ 3123, and civil investigative demands. Further, it applies regardless of whether the compulsory legal process seeks testimony, physical documents, telephone toll records, metadata, or digital content.
  3. As with the current regulations, this prohibition on compulsory process does not apply to obtaining information from or records of a member of the news media who is the subject or target of an investigation when that status is not based on or within the scope of newsgathering activities.

“Because the goal is to protect members of the news media in a manner that will be enduring, I am asking the Deputy Attorney General to undertake a review process to further explain, develop, and codify the above protections in regulations, after consulting with the relevant internal and external stakeholders.”

While this memorandum sounds great for the reasons outlined in the document, one must ask why now?  What has changed?  One particular paragraph that jumped out at us is as follows with emphasis added.

3. Also as part of that review, the Deputy Attorney General will examine the procedures used to safeguard information from or records of members of the news media obtained by compulsory legal process in the limited circumstances in which that remains permissible, as well as such information or records that were previously obtained. That examination will include developing procedures for the appropriate destruction or return of such information or records, as permitted by law.

Considering the massive gathering of information that took place after the January 6th, 2021 event in Washington, we wonder if officials overstepped their authority and are now facing legal pushback from media entities?

Time will tell.

The memorandum issued has additional information and can be downloaded at this link or viewed below.




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