Attorney General Merrick Garland announced in a memo on Monday that the U.S. government is pledging to steer clear of legal orders that force journalists to reveal their sources, and called for a “review process to further explain, develop and codify the new policy.”
Only with rare exceptions would the Justice Department and FBI investigators be able to seize materials from reporters and new outlets, according to the new policy announced by Attorney General Garland. This will include phone and digital records.
“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,” Garland said in the memo issued to federal prosecutors.
The Attorney General said the agency’s previous guidelines didn’t properly weight the “national interest” in shielding reporters from having to disclose their sources, saying such protections are needed to “apprise the American people of the workings of their government.”
Garland’s new policy creates a new standard for how the Justice Department will handle investigations that involve news outlets and reporters, restricting orders that compel companies to hand over records, except in rare circumstances.
The change comes in the wake of revelations that the department obtained records of journalists from CNN, The Washington Post and The New York Times in the last year of the Trump Administration. This drew criticism from lawmakers, press-freedom organizations and President Joe Biden, who vowed in May to halt the department’s practice.
Under former President Donald Trump, during investigations into Russia and other national security matters, the Justice Department maintained the practice of obtaining journalists records.
Trump’s Administration isn’t the only administration to use this practice. In 2013, the Obama Administration obtained records of an Associated Press journalist as part of an investigation into media leaks. Then Attorney General Eric Holder defended his department’s use of the practice. Although, he later issued a revised set of guidelines for leak investigations, including requiring the authorization of the highest levels of the department to issue subpoenas.
But the prohibition does not apply when a journalist is the target of a criminal investigation or records fall outside of newsgathering activities. Other exceptions include when a journalist is an agent of a foreign power, a member of a foreign terrorist organization and when obtaining records from journalists would prevent serious bodily harm or death, according to the memo.