Federal probes of journalists get new limits
By USA Today
Published: Friday, July 12, 2013, 6:39 p.m.
WASHINGTON — The Justice Department on Friday announced changes to how it will conduct investigations of leaks of classified information to reporters, making it more difficult for prosecutors to obtain journalists' phone records and other private information without giving news organizations advance notice.
Attorney General Eric Holder delivered his recommendations to President Obama before the agency released its long-awaited report late Friday afternoon.
The Holder report comes after the Obama administration drew fire for revelations this year that federal authorities secretly obtained the emails and tracked the movements of Fox News reporter James Rosen and obtained a trove of phone records for lines used by Associated Press journalists.
“The Department of Justice is firmly committed to ensuring our nation's security and protecting the American people, while at the same time safeguarding the freedom of the press,” Holder said in a statement. “These revised guidelines will help ensure the proper balance is struck when pursuing investigations into unauthorized disclosures.”
According to the rule changes, the Federal Bureau of Investigation no longer will be able to portray a reporter as a co-conspirator in a criminal leak as a way to get around a legal bar on secret search warrants for reporting materials.
That tactic was used in the FBI's argument in the Fox News case. Specifically, an affidavit filed in the case by an FBI agent said Rosen may have acted as “an aider, abettor and/or co-conspirator” in the leak of classified information.
In addition, under the new rules, a search warrant cannot be issued if the reporter is engaged in “ordinary news-gathering” activities and if the individual is not the explicit target of the probe. Court documents suggested Rosen used flattery to coax information out of the official who leaked him documents. Such behavior would presumably fall under the ordinary news-gathering provision.
Another change in the guidelines would make it more difficult for prosecutors to obtain a reporter's calling records without giving the news organization advance notice.
Now notice is provided to the news organization only if an assistant attorney general agrees that it would not pose a clear or substantial threat to the investigation. Under the new guidelines, the department would provide notice except when the attorney general finds that it would pose a threat to the investigation.
Media organizations would be notified within 90 days, even in cases in which it's determined that there is a threat, according to the Justice Department report.
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