Trying to fight scandals on a dozen fronts, President Obama’s Department of Justice is proposing a new strategy for searching reporters’ telephone records for investigative information.
The controversy erupted when it was revealed in May that the Justice Department secretly subpoenaed the phone records of Associated Press reporters and Fox News correspondent James Rosen.
According to the Electronic Privacy Information Center, the DOJ’s “change in policy” comes in response to outrage over DOJ access to reporters’ phone calls.
“The new rules establish a presumption that reporters will be notified when their records are sought and also raises the legal standard for access under the Privacy Protection Act of 1980, a law that is intended to protect journalists’ records from government access,” the organization reported.
The organization had filed a Freedom of Information Act request seeking details of the legal basis for the decision by the Justice Department to obtain a subpoena for reporters’ phone records.
Rosen’s conversations were demanded by the federal government in its investigation of former State Department adviser Stephen Jin-Woo Kim for allegedly leaking national defense information.
The probe focused on a story Rosen wrote in 2009 concerning a warning that North Korea probably would do more nuclear tests in response to United Nation sanctions against the communist nation.
The DOJ claimed Rosen was “an aider and abettor” because he was trying to report on the information he wanted to obtain from his source.
A separate leak investigation scooped up information from dozens of AP reporters.
The new DOJ policy would state that “the news media will not be subject to prosecution based solely on newsgathering activities.” The decision to pursue information from newsgathering sources would have to involve “extraordinary” circumstances.
“The department’s policy is to utilize such tools only as a last resort, after all reasonable alternative investigative steps have been taken, and when the information sought is essential to a successful investigation or prosecution,” the DOJ said.
The DOJ said it was trying to balance the protection of Americans by “pursuing those who violate their oaths through unlawful disclosures of information and safeguarding the essential role of a free press in fostering government accountability and an open society.”
The department said the biggest change is that there now will be a new presumption regarding notice to members of the news media whose information may be sought.
“The presumption will ensure notice in all but the most exceptional cases,” the proposal says.
“By strengthening the presumption in favor of notice, and providing that notice be deferred only where the attorney general, after a review by a committee of senior department officials, finds that notice would present a clear and substantial threat to the investigation, grave harm to national security, or imminent risk of death or serious bodily harm, the department’s new policy reflects the gravity of the decision to forgo negotiations with, or delay notification to, affected members of the news media,” the report says.
There also will be a standing News Media Review Committee assembled to advise the attorney general regarding access to media records.
“This committee will ensure that senior department officials with relevant expertise and experience, and who are neither directly involved nor play a supervisory role in the investigations involved, are engaged in the consideration of the use of investigative tools that involve members of the news media,” the government said.
Michael Clemente, Fox News’ vice president for news, said: “The guidelines appear to be welcome steps. That said, the attorney general, Justice Department officials and the FBI should also take full responsibility for the illegal actions taken against Fox News and James Rosen.”
A statement from the AP said the new guidelines suggest that the government now will be providing additional protection for journalists.
“We’ll obviously be reviewing them more closely when the actual language of the guidelines is released, but we are heartened by this,” the AP said in a statement.