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President Biden: 'Simply wrong' to seize reporters' phone records
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Editor’s Note: Bruce D. Brown is the executive director of the Reporters Committee for Freedom of the Press. Gabe Rottman directs the Reporters Committee’s Technology and Press Freedom Project. The Reporters Committee helped coordinate discussions between members of the news media and senior officials at the Department. The opinions expressed in this commentary belong to the authors. View more opinion on CNN.

CNN  — 

In a 1974 speech, US Supreme Court Justice Potter Stewart put down some famous markers involving the rights of the press. “So far as the Constitution goes,” he said, “the autonomous press may publish what it knows, and may seek to learn what it can.”

Bruce Brown
Gabe Rottman

But for the press it has been difficult to exercise these rights fully with the subpoena power of the government hanging over the heads of reporters and threatening their confidential sources. In recent years, it was easy to despair that the Justice Department’s aggressive pursuit of journalists’ sources in the name of plugging “leaks” would forever undermine the freedoms that Justice Stewart envisioned.

On Wednesday, that changed. After a decade of intrusive leak probes, including three at the end of the Trump administration that swept in Barbara Starr’s records at CNN as well as those of journalists at The New York Times and The Washington Post, Attorney General Merrick Garland issued a new rule prohibiting subpoenas and other types of legal processes against the press in all but narrow circumstances.

For the first time, the new policy defines a lane of total protection for journalism – where the department has almost entirely relinquished its discretion to use investigative tools against the press despite the power to do so handed to it by the courts. That’s historic.

Under the previous policy, which dates back to 1970, federal prosecutors could ask the attorney general for permission to obtain records from a journalist if they asserted that the investigative need was strong enough. It was a so-called balancing test, pitting First Amendment protections against the interests of prosecutors.

Now, when journalists receive, possess and publish government secrets, prosecutors may not use subpoenas, court orders or search warrants to obtain their records or compel their testimony. The only exceptions are when not doing so presents an imminent threat to life or limb or other bona fide emergencies (with an attorney general approval requirement), and when journalists are asked to verify publicly reported information. The policy does not contain a catch-all exception for national security information.

As for their newsgathering activities, the rule doesn’t provide shelter for journalists who violate the law to get a story, and in these cases reporters cannot expect to be shielded from government investigations. Nor does it protect a journalist who solicits an unlawful act by someone else, which the Department would see as a crime.

But at the same time, the rule tries to deal with the inevitable tensions between national security and press freedom in two crucial ways. First, when there is a “close or novel” question about whether a member of the news media is acting within the scope of newsgathering, that determination is elevated to DOJ leadership. And when there is “genuine uncertainty” on that question, the attorney general must make the call, a key political check.

Second, the policy’s guidance on the meaning of newsgathering realistically recognizes that it includes when a journalist “pursues” information, even national security information – as part of the active hunt for news, not just the passive receipt of it.

Thus, going forward, forcing reporters to divulge sensitive information simply to identify or confirm sources in routine leak cases would cut against the promise of Garland’s fresh start. As such, the new policy, which builds on a 2021 Department memorandum, should finally break the repeating cycle of government overreach, apology and reform that has characterized the last half century (and even if the policy could be changed under a future attorney general, it sets a firm marker).

Starting in the 1960s, the CIA illegally surveilled reporters to identify sources, which led to public outcry. In the early 1970s, outrage over attempts by prosecutors to force journalists to name their sources led to the creation of the first DOJ media subpoena guidelines. The policy was tightened in 1980. In the mid-2010s, a dragnet subpoena of Associated Press phone records and a controversial search warrant involving a Fox News reporter produced additional changes under Attorney General Eric Holder, Jr.

But these ever-shifting levels of protection never did the job. While the Holder reforms were an improvement, they were not enough to stop the Trump administration’s secret snooping in newsrooms. Had it been in place, the Garland policy should have.

Indeed, the Department has gone further than even Justice Stewart did in his dissent in Branzburg v. Hayes, the 1972 decision refusing to recognize a First Amendment right for reporters to shield their sources in court. Stewart supported an approach that would permit subpoenas only when strictly necessary, and where no alternative exists. His balancing test found its way into the Justice Department’s old policy and was similar to the one Garland just bettered with the new bright-line protections.

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    If you are wondering how this policy affects you, we are writing during a European war, with Washington on fragile footing, when the strain on press freedom – and the temptation to drop a leak challenging administration orthodoxy – are almost always at their greatest. Today, reporters following those leads should not fear subpoenas. The new Garland rule reflects the best version of the US as a democracy, comfortable enough with freedom to keep the press free.