Policy Regarding Obtaining Information From, or Records of, Members of the News Media; and Regarding Questioning, Arresting, or Charging Members of the News Media, 10989-10994 [2014-04239]

Download as PDF Federal Register / Vol. 79, No. 39 / Thursday, February 27, 2014 / Rules and Regulations substances and can easily absorb the costs of administering alfaxalone with nominal to no additional economic burden. For example, because DEAveterinary practitioners are likely to already be schedule IV handlers, they already secure schedule II–V controlled substances in a securely locked, substantially constructed cabinet. See 21 CFR 1301.75(b). Accordingly, the requirement to secure all controlled substances containing alfaxalone would not impose a significant economic burden upon DEA-registered practitioners as the infrastructure and materials for doing so are already in place. Labeling their products is routine and in the normal course of business of manufacturers. The DEA therefore assumes that the cost of compliance with 21 CFR part 1302 as a result of this final rule is nominal. Correspondingly, the DEA estimates that the cost of the labeling and packaging requirements of this final rule is nominal for the authorized manufacturer. Accordingly, compliance would not require significant additional manpower, capital investment, or recordkeeping burdens. Because of these facts, this rule will not result in a significant economic impact on a substantial number of small entities. TKELLEY on DSK3SPTVN1PROD with RULES Unfunded Mandates Reform Act of 1995 In accordance with the Unfunded Mandates Reform Act (UMRA) of 1995 (2 U.S.C. 1501 et seq.), the DEA has determined and certifies pursuant to UMRA that this action would not result in any Federal mandate that may result ‘‘in the expenditure by State, local, and tribal governments, in the aggregate, or by the private sector, of $100,000,000 or more (adjusted for inflation) in any one year * * * .’’ Therefore, neither a Small Government Agency Plan nor any other action is required under provisions of UMRA of 1995. Paperwork Reduction Act of 1995 This action does not impose a new collection of information requirement under the Paperwork Reduction Act of 1995. 44 U.S.C. 3501–3521. This action would not impose recordkeeping or reporting requirements on State or local governments, individuals, businesses, or organizations. An agency may not conduct or sponsor, and a person is not required to respond to, a collection of information unless it displays a currently valid OMB control number. Congressional Review Act This rule is not a major rule as defined by section 804 of the Small Business Regulatory Enforcement Fairness Act of 1996 (Congressional VerDate Mar<15>2010 16:18 Feb 26, 2014 Jkt 232001 Review Act (CRA). This rule will not result in: an annual effect on the economy of $100,000,000 or more; a major increase in costs or prices for consumers, individual industries, Federal, State, or local government agencies, or geographic regions; or significant adverse effects on competition, employment, investment, productivity, innovation, or on the ability of United States-based companies to compete with foreign based companies in domestic and export markets. However, pursuant to the CRA, the DEA has submitted a copy of this final rule to both Houses of Congress and to the Comptroller General. List of Subjects in 21 CFR Part 1308 Administrative practice and procedure, Drug traffic control, Reporting and recordkeeping requirements. For the reasons set out above, 21 CFR part 1308 is amended as follows: PART 1308—SCHEDULES OF CONTROLLED SUBSTANCES 1. The authority citation for 21 CFR part 1308 continues to read as follows: ■ Authority: 21 U.S.C. 811, 812, 871(b), unless otherwise noted. 2. Amend § 1308.14 by redesignating paragraphs (c)(1) through (c)(53) as paragraphs (c)(2) through (c)(54) and adding new paragraph (c)(1) to read as follows: ■ § 1308.14 Schedule IV. * * * * * (c) * * * (1) Alfaxalone—(2731) * * * * * Dated: February 21, 2014. Michele M. Leonhart, Administrator. [FR Doc. 2014–04332 Filed 2–26–14; 8:45 am] BILLING CODE 4410–09–P DEPARTMENT OF JUSTICE Office of the Attorney General 28 CFR Parts 50 and 59 [Docket No. 145; AG Order No. 3420–2014] Policy Regarding Obtaining Information From, or Records of, Members of the News Media; and Regarding Questioning, Arresting, or Charging Members of the News Media Office of the Attorney General, Department of Justice. ACTION: Final rule. AGENCY: PO 00000 Frm 00039 Fmt 4700 Sfmt 4700 10989 This rule amends the policy of the Department of Justice regarding the use of subpoenas, certain court orders, and search warrants, to obtain information from, or records of, members of the news media. The rule also amends the Department’s policy regarding questioning, arresting, or charging members of the news media. DATES: This rule is effective on February 27, 2014. FOR FURTHER INFORMATION CONTACT: Monique Roth, Director, Office of Enforcement Operations, Criminal Division, (202) 514–6809. SUPPLEMENTARY INFORMATION: SUMMARY: Discussion In May of 2013, the Department initiated a comprehensive evaluation of its practices and policies regarding the use of subpoenas, court orders, and search warrants to obtain information from, or records of, members of the news media. As part of this process, the Department convened a series of meetings to solicit input from a wide range of news media stakeholders, First Amendment academics and advocates, and Members of Congress. Based on this review, the Department issued a report on July 12, 2013, announcing changes to the Department’s policies. This final rule revises the existing provisions in the Department’s regulations at 28 CFR 50.10. The revisions are intended to ensure that, in determining whether to seek information from, or records of, members of the news media, the Department strikes the proper balance among several vital interests: (1) Protecting national security, (2) ensuring public safety, (3) promoting effective law enforcement and the fair administration of justice, and (4) safeguarding the essential role of the free press in fostering government accountability and an open society. The revisions also ensure more robust oversight by senior Department officials; centralize the internal review and evaluation process; set out specific standards for the use and handling of information obtained from, or records of, members of the news media; and extend the policies to cover the use of subpoenas, court orders issued pursuant to 18 U.S.C. 2703(d) and 3123, and search warrants. The changes to the policy also strengthen the presumption that Department attorneys will negotiate with, and provide advance notice to, affected members of the news media when investigators seek to obtain from third parties communications records or E:\FR\FM\27FER1.SGM 27FER1 10990 Federal Register / Vol. 79, No. 39 / Thursday, February 27, 2014 / Rules and Regulations business records related to ordinary newsgathering activities. A cross-reference to the new policy has been added to part 59, pertaining to documentary materials held by third parties. Regulatory Certifications Administrative Procedure Act, 5 U.S.C. 553 Because, for purposes of the Administrative Procedure Act, this regulation concerns general statements of policy, or rules of agency organization, procedure, or practice, notice and comment and a delayed effective date are not required. See 5 U.S.C. 553(b)(A). Regulatory Flexibility Act Because this final rule is not promulgated as a final rule under 5 U.S.C. 553 and was not required under that section to be published as a proposed rule, the requirements for the preparation of a regulatory flexibility analysis under 5 U.S.C. 604(a) do not apply. In any event, the Attorney General, in accordance with 5 U.S.C. 605(b), has reviewed this regulation and by approving it certifies that this regulation will not have a significant economic impact on a substantial number of small entities because it pertains to administrative matters affecting the Department. Executive Orders 12866 and 13563— Regulatory Planning and Review This action has been drafted and reviewed in accordance with Executive Order 12866, Regulatory Planning and Review, section 1(b), Principles of Regulation. This rule is limited to agency organization, management, or personnel matters as described by section 3(d)(3) of Executive Order 12866 of September 30, 1993, and therefore is not a ‘‘regulation’’ as defined by that Executive Order. Accordingly, this action has not been reviewed by the Office of Management and Budget. of August 4, 1999, this rule does not have sufficient federalism implications to warrant the preparation of a federalism assessment. Unfunded Mandates Reform Act of 1995 This rule will not result in the expenditure by State, local, and tribal governments, in the aggregate, or by the private sector, of $100 million or more in any one year, and it will not significantly or uniquely affect small governments. Therefore, no actions were deemed necessary under the provisions of the Unfunded Mandates Reform Act of 1995, Public Law 104–4. Congressional Review Act This action pertains to agency management and does not substantially affect the rights or obligations of nonagency parties; accordingly, this action is not a ‘‘rule’’ as that term is used by the Congressional Review Act (Subtitle E of the Small Business Regulatory Enforcement Fairness Act of 1996 (SBREFA)). Therefore, the reporting requirement of 5 U.S.C. 801 does not apply. List of Subjects 28 CFR Part 50 Administrative practice and procedure, Crime, News, Media, Subpoena, Search warrants. 28 CFR Part 59 Administrative practice and procedure, Privacy, Search warrants. Accordingly, for the reasons stated in the preamble, parts 50 and 59 of title 28 of the Code of Federal Regulations are amended as follows: PART 50—STATEMENTS OF POLICY 1. The authority citation for part 50 is revised to read as follows: ■ Authority: 5 U.S.C. 301; 18 U.S.C. 1162; 28 U.S.C. 509, 510, 516, and 519; 42 U.S.C. 1921 et seq., 1973c; and Pub. L. 107–273, 116 Stat. 1758, 1824. 2. Section 50.10 is revised to read as follows: TKELLEY on DSK3SPTVN1PROD with RULES Executive Order 12988—Civil Justice Reform This regulation meets the applicable standards set forth in sections 3(a) and 3(b)(2) of Executive Order 12988 of February 5, 1996. ■ Executive Order 13132—Federalism This regulation will not have substantial direct effects on the States, on the relationship between the national government and the States, or on distribution of power and responsibilities among the various levels of government. Therefore, in accordance with Executive Order 13132 (a) Statement of principles. (1) Because freedom of the press can be no broader than the freedom of members of the news media to investigate and report the news, the Department’s policy is intended to provide protection to members of the news media from certain law enforcement tools, whether criminal or civil, that might VerDate Mar<15>2010 16:18 Feb 26, 2014 Jkt 232001 § 50.10 Policy regarding obtaining information from, or records of, members of the news media; and regarding questioning, arresting, or charging members of the news media. PO 00000 Frm 00040 Fmt 4700 Sfmt 4700 unreasonably impair ordinary newsgathering activities. The policy is not intended to extend special protections to members of the news media who are the focus of criminal investigations for conduct not based on, or within the scope of, ordinary newsgathering activities. (2) In determining whether to seek information from, or records of, members of the news media, the approach in every instance must be to strike the proper balance among several vital interests: protecting national security, ensuring public safety, promoting effective law enforcement and the fair administration of justice, and safeguarding the essential role of the free press in fostering government accountability and an open society. (3) The Department views the use of certain law enforcement tools, including subpoenas, court orders issued pursuant to 18 U.S.C. 2703(d) or 3123, and search warrants to seek information from, or records of, non-consenting members of the news media as extraordinary measures, not standard investigatory practices. Subpoenas or court orders issued pursuant to 18 U.S.C. 2703(d) or 3123, in particular, may be used, after authorization by the Attorney General, or by another senior official in accordance with the exceptions set forth in paragraph (c)(3) of this section, only to obtain information from, or records of, members of the news media when the information sought is essential to a successful investigation, prosecution, or litigation; after all reasonable alternative attempts have been made to obtain the information from alternative sources; and after negotiations with the affected member of the news media have been pursued, unless the Attorney General determines that, for compelling reasons, such negotiations would pose a clear and substantial threat to the integrity of the investigation, risk grave harm to national security, or present an imminent risk of death or serious bodily harm. (4) When the Attorney General has authorized the use of a subpoena, court order issued pursuant to 18 U.S.C. 2703(d) or 3123, or warrant to obtain from a third party communications records or business records of a member of the news media, the affected member of the news media shall be given reasonable and timely notice of the Attorney General’s determination before the use of the subpoena, court order, or warrant, unless the Attorney General determines that, for compelling reasons, such notice would pose a clear and substantial threat to the integrity of the investigation, risk grave harm to national security, or present an E:\FR\FM\27FER1.SGM 27FER1 TKELLEY on DSK3SPTVN1PROD with RULES Federal Register / Vol. 79, No. 39 / Thursday, February 27, 2014 / Rules and Regulations imminent risk of death or serious bodily harm. (b) Scope.—(1) Covered individuals and entities. (i) The policy governs the use of certain law enforcement tools to obtain information from, or records of, members of the news media. (ii) The protections of the policy do not extend to any individual or entity who is or is reasonably likely to be— (A) A foreign power or agent of a foreign power, as those terms are defined in section 101 of the Foreign Intelligence Surveillance Act of 1978 (50 U.S.C. 1801); (B) A member or affiliate of a foreign terrorist organization designated under section 219(a) of the Immigration and Nationality Act (8 U.S.C. 1189(a)); (C) Designated as a Specially Designated Global Terrorist by the Department of the Treasury under Executive Order No. 13224 of September 23, 2001 (66 FR 49079); (D) A specially designated terrorist as that term is defined in 31 CFR 595.311 (or any successor thereto); (E) A terrorist organization as that term is defined in section 212(a)(3)(B)(vi) of the Immigration and Nationality Act (8 U.S.C. 1182(a)(3)(B)(vi)); (F) Committing or attempting to commit a crime of terrorism, as that offense is described in 18 U.S.C. 2331(5) or 2332b(g)(5); (G) Committing or attempting the crime of providing material support or resources, as that term is defined in 18 U.S.C. 2339A(b)(1), to a terrorist organization; or (H) Aiding, abetting, or conspiring in illegal activity with a person or organization described in paragraphs (b)(1)(ii)(A) through (G) of this section. (2) Covered law enforcement tools and records. (i) The policy governs the use by law enforcement authorities of subpoenas or, in civil matters, other similar compulsory process such as a civil investigative demand (collectively ‘‘subpoenas’’) to obtain information from members of the news media, including documents, testimony, and other materials; and the use by law enforcement authorities of subpoenas, or court orders issued pursuant to 18 U.S.C. 2703(d) (‘‘2703(d) order’’) or 18 U.S.C. 3123 (‘‘3123 order’’), to obtain from third parties ‘‘communications records’’ or ‘‘business records’’ of members of the news media. (ii) The policy also governs applications for warrants to search the premises or property of members of the news media, pursuant to Federal Rule of Criminal Procedure 41; or to obtain from third-party ‘‘communication service providers’’ the communications records VerDate Mar<15>2010 16:18 Feb 26, 2014 Jkt 232001 of members of the news media, pursuant to 18 U.S.C. 2703(a) and (b). (3) Definitions. (i)(A) ‘‘Communications records’’ include the contents of electronic communications as well as source and destination information associated with communications, such as email transaction logs and local and long distance telephone connection records, stored or transmitted by a third-party communication service provider with which the member of the news media has a contractual relationship. (B) Communications records do not include information described in 18 U.S.C. 2703(c)(2)(A), (B), (D), (E), and (F). (ii) A ‘‘communication service provider’’ is a provider of an electronic communication service or remote computing service as defined, respectively, in 18 U.S.C. 2510(15) and 18 U.S.C. 2711(2). (iii)(A) ‘‘Business records’’ include records of the activities, including the financial transactions, of a member of the news media related to the coverage, investigation, or reporting of news, which records are generated or maintained by a third party with which the member of the news media has a contractual relationship. Business records are limited to those that could provide information about the newsgathering techniques or sources of a member of the news media. (B) Business records do not include records unrelated to ordinary newsgathering activities, such as those related to the purely commercial, financial, administrative, or technical, operations of a news media entity. (C) Business records do not include records that are created or maintained either by the government or by a contractor on behalf of the government. (c) Issuing subpoenas to members of the news media, or using subpoenas or court orders issued pursuant to 18 U.S.C. 2703(d) or 3123 to obtain from third parties communications records or business records of a member of the news media. (1) Except as set forth in paragraph (c)(3) of this section, members of the Department must obtain the authorization of the Attorney General to issue a subpoena to a member of the news media; or to use a subpoena, 2703(d) order, or 3123 order to obtain from a third party communications records or business records of a member of the news media. (2) Requests for the authorization of the Attorney General for the issuance of a subpoena to a member of the news media, or to use a subpoena, 2703(d) order, or 3123 order to obtain communications records or business PO 00000 Frm 00041 Fmt 4700 Sfmt 4700 10991 records of a member of the news media, must personally be endorsed by the United States Attorney or Assistant Attorney General responsible for the matter. (3) Exceptions to the Attorney General authorization requirement. (i)(A) A United States Attorney or Assistant Attorney General responsible for the matter may authorize the issuance of a subpoena to a member of the news media (e.g., for documents, video or audio recordings, testimony, or other materials) if the member of the news media expressly agrees to provide the requested information in response to a subpoena. This exception applies, but is not limited, to both published and unpublished materials and aired and unaired recordings. (B) In the case of an authorization under paragraph (c)(3)(i)(A) of this section, the United States Attorney or Assistant Attorney General responsible for the matter shall provide notice to the Director of the Criminal Division’s Office of Enforcement Operations within 10 business days of the authorization of the issuance of the subpoena. (ii) In light of the intent of the policy to protect freedom of the press, ordinary newsgathering activities, and confidential news media sources, authorization of the Attorney General will not be required of members of the Department in the following circumstances: (A) To issue subpoenas to news media entities for purely commercial, financial, administrative, technical, or other information unrelated to ordinary newsgathering activities; or for information or records relating to personnel not involved in ordinary newsgathering activities. (B) To issue subpoenas to members of the news media for information related to public comments, messages, or postings by readers, viewers, customers, or subscribers, over which the member of the news media does not exercise editorial control prior to publication. (C) To use subpoenas to obtain information from, or to use subpoenas, 2703(d) orders, or 3123 orders to obtain communications records or business records of, members of the news media who may be perpetrators or victims of, or witnesses to, crimes or other events, when such status (as a perpetrator, victim, or witness) is not based on, or within the scope of, ordinary newsgathering activities. (iii) In the circumstances identified in paragraphs (c)(3)(ii)(A) through (C) of this section, the United States Attorney or Assistant Attorney General responsible for the matter must— E:\FR\FM\27FER1.SGM 27FER1 TKELLEY on DSK3SPTVN1PROD with RULES 10992 Federal Register / Vol. 79, No. 39 / Thursday, February 27, 2014 / Rules and Regulations (A) Authorize the use of the subpoena or court order; (B) Consult with the Criminal Division regarding appropriate review and safeguarding protocols; and (C) Provide a copy of the subpoena or court order to the Director of the Office of Public Affairs and to the Director of the Criminal Division’s Office of Enforcement Operations within 10 business days of the authorization. (4) Considerations for the Attorney General in determining whether to authorize the issuance of a subpoena to a member of the news media. (i)(A) In criminal matters, there should be reasonable grounds to believe, based on public information, or information from non-media sources, that a crime has occurred, and that the information sought is essential to a successful investigation or prosecution. The subpoena should not be used to obtain peripheral, nonessential, or speculative information. (B) In civil matters, there should be reasonable grounds to believe, based on public information or information from non-media sources, that the information sought is essential to the successful completion of the investigation or litigation in a case of substantial importance. The subpoena should not be used to obtain peripheral, nonessential, cumulative, or speculative information. (ii) The government should have made all reasonable attempts to obtain the information from alternative, nonmedia sources. (iii)(A) The government should have pursued negotiations with the affected member of the news media, unless the Attorney General determines that, for compelling reasons, such negotiations would pose a clear and substantial threat to the integrity of the investigation, risk grave harm to national security, or present an imminent risk of death or serious bodily harm. Where the nature of the investigation permits, the government should have explained to the member of the news media the government’s needs in a particular investigation or prosecution, as well as its willingness to address the concerns of the member of the news media. (B) The obligation to pursue negotiations with the affected member of the news media, unless excused by the Attorney General, is not intended to conflict with the requirement that members of the Department secure authorization from the Attorney General to question a member of the news media as required in paragraph (f)(1) of this section. Accordingly, members of the Department do not need to secure VerDate Mar<15>2010 16:18 Feb 26, 2014 Jkt 232001 authorization from the Attorney General to pursue negotiations. (iv) The proposed subpoena generally should be limited to the verification of published information and to such surrounding circumstances as relate to the accuracy of the published information. (v) In investigations of unauthorized disclosures of national defense information or of classified information, where the Director of National Intelligence, after consultation with the relevant Department or agency head(s), certifies to the Attorney General the significance of the harm raised by the unauthorized disclosure and that the information disclosed was properly classified and reaffirms the intelligence community’s continued support for the investigation and prosecution, the Attorney General may authorize the Department, in such investigations, to issue subpoenas to members of the news media. The certification will be sought not more than 30 days prior to the submission of the approval request to the Attorney General. (vi) Requests should be treated with care to avoid interference with ordinary newsgathering activities or claims of harassment. (vii) The proposed subpoena should be narrowly drawn. It should be directed at material and relevant information regarding a limited subject matter, should cover a reasonably limited period of time, should avoid requiring production of a large volume of material, and should give reasonable and timely notice of the demand. (5) Considerations for the Attorney General in determining whether to authorize the use of a subpoena, 2703(d) order, or 3123 order to obtain from third parties the communications records or business records of a member of the news media. (i)(A) In criminal matters, there should be reasonable grounds to believe, based on public information, or information from nonmedia sources, that a crime has been committed, and that the information sought is essential to the successful investigation or prosecution of that crime. The subpoena or court order should not be used to obtain peripheral, nonessential, or speculative information. (B) In civil matters, there should be reasonable grounds to believe, based on public information, or information from non-media sources, that the information sought is essential to the successful completion of the investigation or litigation in a case of substantial importance. The subpoena should not be used to obtain peripheral, PO 00000 Frm 00042 Fmt 4700 Sfmt 4700 nonessential, cumulative, or speculative information. (ii) The use of a subpoena or court order to obtain from a third party communications records or business records of a member of the news media should be pursued only after the government has made all reasonable attempts to obtain the information from alternative sources. (iii)(A) The government should have pursued negotiations with the affected member of the news media, unless the Attorney General determines that, for compelling reasons, such negotiations would pose a clear and substantial threat to the integrity of the investigation, risk grave harm to national security, or present an imminent risk of death or serious bodily harm. (B) The obligation to pursue negotiations with the affected member of the news media, unless excused by the Attorney General, is not intended to conflict with the requirement that members of the Department secure authorization from the Attorney General to question a member of the news media as set forth in paragraph (f)(1) of this section. Accordingly, members of the Department do not need to secure authorization from the Attorney General to pursue negotiations. (iv) In investigations of unauthorized disclosures of national defense information or of classified information, where the Director of National Intelligence, after consultation with the relevant Department or agency head(s), certifies to the Attorney General the significance of the harm raised by the unauthorized disclosure and that the information disclosed was properly classified and reaffirms the intelligence community’s continued support for the investigation and prosecution, the Attorney General may authorize the Department, in such investigations, to use subpoenas or court orders issued pursuant to 18 U.S.C. 2703(d) or 3123 to obtain communications records or business records of a member of the news media. The certification will be sought not more than 30 days prior to the submission of the approval request to the Attorney General. (v) The proposed subpoena or court order should be narrowly drawn. It should be directed at material and relevant information regarding a limited subject matter, should cover a reasonably limited period of time, and should avoid requiring production of a large volume of material. (vi) If appropriate, investigators should propose to use search protocols designed to minimize intrusion into potentially protected materials or E:\FR\FM\27FER1.SGM 27FER1 TKELLEY on DSK3SPTVN1PROD with RULES Federal Register / Vol. 79, No. 39 / Thursday, February 27, 2014 / Rules and Regulations newsgathering activities unrelated to the investigation, including but not limited to keyword searches (for electronic searches) and filter teams (reviewing teams separate from the prosecution and investigative teams). (d) Applying for warrants to search the premises, property, or communications records of members of the news media. (1) Except as set forth in paragraph (d)(4) of this section, members of the Department must obtain the authorization of the Attorney General to apply for a warrant to search the premises, property, or communications records of a member of the news media. (2) All requests for authorization of the Attorney General to apply for a warrant to search the premises, property, or communications records of a member of the news media must personally be endorsed by the United States Attorney or Assistant Attorney General responsible for the matter. (3) In determining whether to authorize an application for a warrant to search the premises, property, or contents of communications records of a member of the news media, the Attorney General should take into account the considerations identified in paragraph (c)(5) of this section. (4) Members of the Department may apply for a warrant to obtain work product materials or other documentary materials of a member of the news media pursuant to the ‘‘suspect exception’’ of the Privacy Protection Act (‘‘PPA suspect exception’’), 42 U.S.C. 2000aa(a)(1) and (b)(1), only when the member of the news media is a focus of a criminal investigation for conduct not based on, or within the scope of, ordinary newsgathering activities. In such instances, members of the Department must secure authorization from a Deputy Assistant Attorney General for the Criminal Division. (5) Members of the Department should not be authorized to apply for a warrant to obtain work product materials or other documentary materials of a member of the news media under the PPA suspect exception, 42 U.S.C. 2000aa(a)(1) & (b)(1), if the sole purpose is to further the investigation of a person other than the member of the news media. (6) A Deputy Assistant Attorney General for the Criminal Division may authorize, under an applicable PPA exception, an application for a warrant to search the premises, property, or communications records of an individual other than a member of the news media, but who is reasonably believed to have ‘‘a purpose to disseminate to the public a newspaper, VerDate Mar<15>2010 16:18 Feb 26, 2014 Jkt 232001 book, broadcast, or other similar form of public communication.’’ 42 U.S.C. 2000aa(a) and (b). (7) In executing a warrant authorized by the Attorney General or by a Deputy Assistant Attorney General for the Criminal Division investigators should use search protocols designed to minimize intrusion into potentially protected materials or newsgathering activities unrelated to the investigation, including but not limited to keyword searches (for electronic searches) and filter teams (reviewing teams separate from the prosecution and investigative teams). (e) Notice to affected member of the news media. (1)(i) When the Attorney General has authorized the use of a subpoena, court order, or warrant to obtain from a third party communications records or business records of a member of the news media, the affected member of the news media shall be given reasonable and timely notice of the Attorney General’s determination before the use of the subpoena, court order, or warrant, unless the Attorney General determines that, for compelling reasons, such notice would pose a clear and substantial threat to the integrity of the investigation, risk grave harm to national security, or present an imminent risk of death or serious bodily harm. (ii) The mere possibility that notice to the affected member of the news media, and potential judicial review, might delay the investigation is not, on its own, a compelling reason to delay notice. (2) When the Attorney General has authorized the use of a subpoena, court order, or warrant to obtain communications records or business records of a member of the news media, and the affected member of the news media has not been given notice of the Attorney General’s determination before the use of the subpoena, court order, or warrant, the United States Attorney or Assistant Attorney General responsible for the matter shall provide to the affected member of the news media notice of the order or warrant as soon as it is determined that such notice will no longer pose a clear and substantial threat to the integrity of the investigation, risk grave harm to national security, or present an imminent risk of death or serious bodily harm. In any event, such notice shall occur within 45 days of the government’s receipt of any return made pursuant to the subpoena, court order, or warrant, except that the Attorney General may authorize delay of notice for an additional 45 days if he or she PO 00000 Frm 00043 Fmt 4700 Sfmt 4700 10993 determines that, for compelling reasons, such notice would pose a clear and substantial threat to the integrity of the investigation, risk grave harm to national security, or present an imminent risk of death or serious bodily harm. No further delays may be sought beyond the 90-day period. (3) The United States Attorney or Assistant Attorney General responsible for the matter shall provide to the Director of the Office of Public Affairs and to the Director of the Criminal Division’s Office of Enforcement Operations a copy of any notice to be provided to a member of the news media whose communications records or business records were sought or obtained at least 10 business days before such notice is provided to the affected member of the news media, and immediately after such notice is, in fact, provided to the affected member of the news media. (f) Questioning members of the news media about, arresting members of the news media for, or charging members of the news media with, criminal conduct they are suspected of having committed in the course of, or arising out of, the coverage or investigation of news, or while engaged in the performance of duties undertaken as members of the news media. (1) No member of the Department shall subject a member of the news media to questioning as to any offense that he or she is suspected of having committed in the course of, or arising out of, the coverage or investigation of news, or while engaged in the performance of duties undertaken as a member of the news media, without notice to the Director of the Office of Public Affairs and the express authorization of the Attorney General. The government need not view the member of the news media as a subject or target of an investigation, or have the intent to prosecute the member of the news media, to trigger the requirement that the Attorney General must authorize such questioning. (2) No member of the Department shall seek a warrant for an arrest, or conduct an arrest, of a member of the news media for any offense that he or she is suspected of having committed in the course of, or arising out of, the coverage or investigation of news, or while engaged in the performance of duties undertaken as a member of the news media, without notice to the Director of the Office of Public Affairs and the express authorization of the Attorney General. (3) No member of the Department shall present information to a grand jury seeking a bill of indictment, or file an information, against a member of the E:\FR\FM\27FER1.SGM 27FER1 TKELLEY on DSK3SPTVN1PROD with RULES 10994 Federal Register / Vol. 79, No. 39 / Thursday, February 27, 2014 / Rules and Regulations news media for any offense that he or she is suspected of having committed in the course of, or arising out of, the coverage or investigation of news, or while engaged in the performance of duties undertaken as a member of the news media, without notice to the Director of the Office of Public Affairs and the express authorization of the Attorney General. (4) In requesting the Attorney General’s authorization to question, to arrest or to seek an arrest warrant for, or to present information to a grand jury seeking an indictment or to file an information against, a member of the news media for an offense that he or she is suspected of having committed during the course of, or arising out of, the coverage or investigation of news, or while engaged in the performance of duties undertaken as a member of the news media, a member of the Department shall state all facts necessary for a determination by the Attorney General. (g) Exigent circumstances. (1) A Deputy Assistant Attorney General for the Criminal Division may authorize the use of a subpoena or court order, as described in paragraph (c) of this section, or the questioning, arrest, or charging of a member of the news media, as described in paragraph (f) of this section, if he or she determines that the exigent use of such law enforcement tool or technique is necessary to prevent or mitigate an act of terrorism; other acts that are reasonably likely to cause significant and articulable harm to national security; death; kidnapping; substantial bodily harm; conduct that constitutes a specified offense against a minor (for example, as those terms are defined in section 111 of the Adam Walsh Child Protection and Safety Act of 2006, 42 U.S.C. 16911), or an attempt or conspiracy to commit such a criminal offense; or incapacitation or destruction of critical infrastructure (for example, as defined in section 1016(e) of the USA PATRIOT Act, 42 U.S.C. 5195c(e)). (2) A Deputy Assistant Attorney General for the Criminal Division may authorize an application for a warrant, as described in paragraph (d) of this section, if there is reason to believe that the immediate seizure of the materials at issue is necessary to prevent the death of, or serious bodily injury to, a human being, as provided in 42 U.S.C. 2000aa(a)(2) and (b)(2). (3) Within 10 business days of a Deputy Assistant Attorney General for the Criminal Division approving a request under paragraph (g) of this section, the United States Attorney or Assistant Attorney General responsible for the matter shall provide to the VerDate Mar<15>2010 16:18 Feb 26, 2014 Jkt 232001 Attorney General and to the Director of the Office of Public Affairs a statement containing the information that would have been given in requesting prior authorization. (h) Failure to comply with policy. Failure to obtain the prior approval of the Attorney General, as required by this policy, may constitute grounds for an administrative reprimand or other appropriate disciplinary action. (i) General provision. This policy is not intended to, and does not, create any right or benefit, substantive or procedural, enforceable at law or in equity by any party against the United States, its departments, agencies, or entities, its officers, employees, or agents, or any other person. PART 59—GUIDELINES ON METHODS OF OBTAINING DOCUMENTARY MATERIALS HELD BY THIRD PARTIES 3. The authority citation for part 59 continues to read as follows: ■ Authority: Sec. 201, Pub. L. 96–440, 94 Stat. 1879 (42 U.S.C. 2000aa–11). 4. Section 59.3 is revised by adding a new sentence at the end of paragraph (d) to read as follows: ■ § 59.3 Applicability. * * * * * (d) * * * For the use of a warrant to obtain information from, or records of, members of the news media, see the Department’s statement of policy set forth in § 50.10 of this chapter. Dated: February 21, 2013. Eric H. Holder, Jr., Attorney General. [FR Doc. 2014–04239 Filed 2–26–14; 8:45 am] BILLING CODE 4410–14–P Revisions to the Requirements for Authority to Manufacture and Distribute Postage Evidencing Systems Postal ServiceTM. ACTION: Final rule. AGENCY: This rule updates the security and revenue protection features of the Computerized Meter Resetting System (CMRS) and the PC postage payment methodology to reflect changes to the audit profession’s reporting standards on controls at service organizations. DATES: This rule is effective March 31, 2014. FOR FURTHER INFORMATION CONTACT: Marlo Kay Ivey, Business Programs SUMMARY: Fmt 4700 PART 501—AUTHORIZATION TO MANUFACTURE AND DISTRIBUTE POSTAGE EVIDENCING SYSTEMS 1. The authority citation for 39 CFR part 501 continues to read as follows: ■ Authority: 5 U.S.C. 552(a); 39 U.S.C. 101, 401, 403, 404, 410, 2601, 2605, Inspector General Act of 1978, as amended (Pub. L. 95– 452, as amended); 5 U.S.C. App. 3. 2. Section 501.15 is amended by revising paragraph (i) to read as follows: ■ * 39 CFR Part 501 Frm 00044 List of Subjects in 39 CFR Part 501 Administrative practice and procedure. Accordingly, for the reasons stated, 39 CFR part 501 is amended as follows: § 501.15 Computerized Meter Resetting System. POSTAL SERVICE PO 00000 Specialist, Payment Technology, U.S. Postal Service, at 202–268–7613. SUPPLEMENTARY INFORMATION: When the Postal Service was mandated to comply with Sarbanes-Oxley regulations beginning with the financial statements for the fiscal year ending September 30, 2010, the Postal Service required a Statement on Auditing Standards (SAS) 70 Type II Report from each of our providers. Subsequently, the American Institute of Certified Public Accountants (AICPA) issued new guidance to the audit profession on reporting standards for controls at service organizations, superseding the SAS 70 standards. Accordingly, the Postal Service is now requiring a Service Organization Controls SOC1 Type II report, in accordance with Statements on Standards for Attestation Engagements (SSAEs) 16, in the place of a SAS 70 Type II report, from each of our providers. We have also clarified that the expense incurred from obtaining this report will be paid by the provider. Sfmt 4700 * * * * (i) Security and Revenue Protection. To receive Postal Service approval to continue to operate systems in the CMRS environment, the RC must submit to a periodic examination of its CMRS system and any other applications and technology infrastructure that may have a material impact on Postal Service revenues, as determined by the Postal Service. The examination shall be performed by a qualified, independent audit firm and shall be conducted in accordance with the Statements on Standards for Attestation Engagements (SSAEs) No. 16, Service Organizations, developed by the American Institute of Certified Public Accountants (AICPA), as amended or superseded. Expenses associated with such examination shall be incurred by the RC. The examination E:\FR\FM\27FER1.SGM 27FER1

Agencies

[Federal Register Volume 79, Number 39 (Thursday, February 27, 2014)]
[Rules and Regulations]
[Pages 10989-10994]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2014-04239]


=======================================================================
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DEPARTMENT OF JUSTICE

Office of the Attorney General

28 CFR Parts 50 and 59

[Docket No. 145; AG Order No. 3420-2014]


Policy Regarding Obtaining Information From, or Records of, 
Members of the News Media; and Regarding Questioning, Arresting, or 
Charging Members of the News Media

AGENCY: Office of the Attorney General, Department of Justice.

ACTION: Final rule.

-----------------------------------------------------------------------

SUMMARY: This rule amends the policy of the Department of Justice 
regarding the use of subpoenas, certain court orders, and search 
warrants, to obtain information from, or records of, members of the 
news media. The rule also amends the Department's policy regarding 
questioning, arresting, or charging members of the news media.

DATES: This rule is effective on February 27, 2014.

FOR FURTHER INFORMATION CONTACT: Monique Roth, Director, Office of 
Enforcement Operations, Criminal Division, (202) 514-6809.

SUPPLEMENTARY INFORMATION:

Discussion

    In May of 2013, the Department initiated a comprehensive evaluation 
of its practices and policies regarding the use of subpoenas, court 
orders, and search warrants to obtain information from, or records of, 
members of the news media. As part of this process, the Department 
convened a series of meetings to solicit input from a wide range of 
news media stakeholders, First Amendment academics and advocates, and 
Members of Congress. Based on this review, the Department issued a 
report on July 12, 2013, announcing changes to the Department's 
policies.
    This final rule revises the existing provisions in the Department's 
regulations at 28 CFR 50.10. The revisions are intended to ensure that, 
in determining whether to seek information from, or records of, members 
of the news media, the Department strikes the proper balance among 
several vital interests: (1) Protecting national security, (2) ensuring 
public safety, (3) promoting effective law enforcement and the fair 
administration of justice, and (4) safeguarding the essential role of 
the free press in fostering government accountability and an open 
society.
    The revisions also ensure more robust oversight by senior 
Department officials; centralize the internal review and evaluation 
process; set out specific standards for the use and handling of 
information obtained from, or records of, members of the news media; 
and extend the policies to cover the use of subpoenas, court orders 
issued pursuant to 18 U.S.C. 2703(d) and 3123, and search warrants.
    The changes to the policy also strengthen the presumption that 
Department attorneys will negotiate with, and provide advance notice 
to, affected members of the news media when investigators seek to 
obtain from third parties communications records or

[[Page 10990]]

business records related to ordinary newsgathering activities.
    A cross-reference to the new policy has been added to part 59, 
pertaining to documentary materials held by third parties.

Regulatory Certifications

Administrative Procedure Act, 5 U.S.C. 553

    Because, for purposes of the Administrative Procedure Act, this 
regulation concerns general statements of policy, or rules of agency 
organization, procedure, or practice, notice and comment and a delayed 
effective date are not required. See 5 U.S.C. 553(b)(A).

Regulatory Flexibility Act

    Because this final rule is not promulgated as a final rule under 5 
U.S.C. 553 and was not required under that section to be published as a 
proposed rule, the requirements for the preparation of a regulatory 
flexibility analysis under 5 U.S.C. 604(a) do not apply. In any event, 
the Attorney General, in accordance with 5 U.S.C. 605(b), has reviewed 
this regulation and by approving it certifies that this regulation will 
not have a significant economic impact on a substantial number of small 
entities because it pertains to administrative matters affecting the 
Department.

Executive Orders 12866 and 13563--Regulatory Planning and Review

    This action has been drafted and reviewed in accordance with 
Executive Order 12866, Regulatory Planning and Review, section 1(b), 
Principles of Regulation. This rule is limited to agency organization, 
management, or personnel matters as described by section 3(d)(3) of 
Executive Order 12866 of September 30, 1993, and therefore is not a 
``regulation'' as defined by that Executive Order. Accordingly, this 
action has not been reviewed by the Office of Management and Budget.

Executive Order 12988--Civil Justice Reform

    This regulation meets the applicable standards set forth in 
sections 3(a) and 3(b)(2) of Executive Order 12988 of February 5, 1996.

Executive Order 13132--Federalism

    This regulation will not have substantial direct effects on the 
States, on the relationship between the national government and the 
States, or on distribution of power and responsibilities among the 
various levels of government. Therefore, in accordance with Executive 
Order 13132 of August 4, 1999, this rule does not have sufficient 
federalism implications to warrant the preparation of a federalism 
assessment.

Unfunded Mandates Reform Act of 1995

    This rule will not result in the expenditure by State, local, and 
tribal governments, in the aggregate, or by the private sector, of $100 
million or more in any one year, and it will not significantly or 
uniquely affect small governments. Therefore, no actions were deemed 
necessary under the provisions of the Unfunded Mandates Reform Act of 
1995, Public Law 104-4.

Congressional Review Act

    This action pertains to agency management and does not 
substantially affect the rights or obligations of non-agency parties; 
accordingly, this action is not a ``rule'' as that term is used by the 
Congressional Review Act (Subtitle E of the Small Business Regulatory 
Enforcement Fairness Act of 1996 (SBREFA)). Therefore, the reporting 
requirement of 5 U.S.C. 801 does not apply.

List of Subjects

28 CFR Part 50

    Administrative practice and procedure, Crime, News, Media, 
Subpoena, Search warrants.

28 CFR Part 59

    Administrative practice and procedure, Privacy, Search warrants.

    Accordingly, for the reasons stated in the preamble, parts 50 and 
59 of title 28 of the Code of Federal Regulations are amended as 
follows:

PART 50--STATEMENTS OF POLICY

0
1. The authority citation for part 50 is revised to read as follows:

    Authority: 5 U.S.C. 301; 18 U.S.C. 1162; 28 U.S.C. 509, 510, 
516, and 519; 42 U.S.C. 1921 et seq., 1973c; and Pub. L. 107-273, 
116 Stat. 1758, 1824.


0
2. Section 50.10 is revised to read as follows:


Sec.  50.10  Policy regarding obtaining information from, or records 
of, members of the news media; and regarding questioning, arresting, or 
charging members of the news media.

    (a) Statement of principles. (1) Because freedom of the press can 
be no broader than the freedom of members of the news media to 
investigate and report the news, the Department's policy is intended to 
provide protection to members of the news media from certain law 
enforcement tools, whether criminal or civil, that might unreasonably 
impair ordinary newsgathering activities. The policy is not intended to 
extend special protections to members of the news media who are the 
focus of criminal investigations for conduct not based on, or within 
the scope of, ordinary newsgathering activities.
    (2) In determining whether to seek information from, or records of, 
members of the news media, the approach in every instance must be to 
strike the proper balance among several vital interests: protecting 
national security, ensuring public safety, promoting effective law 
enforcement and the fair administration of justice, and safeguarding 
the essential role of the free press in fostering government 
accountability and an open society.
    (3) The Department views the use of certain law enforcement tools, 
including subpoenas, court orders issued pursuant to 18 U.S.C. 2703(d) 
or 3123, and search warrants to seek information from, or records of, 
non-consenting members of the news media as extraordinary measures, not 
standard investigatory practices. Subpoenas or court orders issued 
pursuant to 18 U.S.C. 2703(d) or 3123, in particular, may be used, 
after authorization by the Attorney General, or by another senior 
official in accordance with the exceptions set forth in paragraph 
(c)(3) of this section, only to obtain information from, or records of, 
members of the news media when the information sought is essential to a 
successful investigation, prosecution, or litigation; after all 
reasonable alternative attempts have been made to obtain the 
information from alternative sources; and after negotiations with the 
affected member of the news media have been pursued, unless the 
Attorney General determines that, for compelling reasons, such 
negotiations would pose a clear and substantial threat to the integrity 
of the investigation, risk grave harm to national security, or present 
an imminent risk of death or serious bodily harm.
    (4) When the Attorney General has authorized the use of a subpoena, 
court order issued pursuant to 18 U.S.C. 2703(d) or 3123, or warrant to 
obtain from a third party communications records or business records of 
a member of the news media, the affected member of the news media shall 
be given reasonable and timely notice of the Attorney General's 
determination before the use of the subpoena, court order, or warrant, 
unless the Attorney General determines that, for compelling reasons, 
such notice would pose a clear and substantial threat to the integrity 
of the investigation, risk grave harm to national security, or present 
an

[[Page 10991]]

imminent risk of death or serious bodily harm.
    (b) Scope.--(1) Covered individuals and entities. (i) The policy 
governs the use of certain law enforcement tools to obtain information 
from, or records of, members of the news media.
    (ii) The protections of the policy do not extend to any individual 
or entity who is or is reasonably likely to be--
    (A) A foreign power or agent of a foreign power, as those terms are 
defined in section 101 of the Foreign Intelligence Surveillance Act of 
1978 (50 U.S.C. 1801);
    (B) A member or affiliate of a foreign terrorist organization 
designated under section 219(a) of the Immigration and Nationality Act 
(8 U.S.C. 1189(a));
    (C) Designated as a Specially Designated Global Terrorist by the 
Department of the Treasury under Executive Order No. 13224 of September 
23, 2001 (66 FR 49079);
    (D) A specially designated terrorist as that term is defined in 31 
CFR 595.311 (or any successor thereto);
    (E) A terrorist organization as that term is defined in section 
212(a)(3)(B)(vi) of the Immigration and Nationality Act (8 U.S.C. 
1182(a)(3)(B)(vi));
    (F) Committing or attempting to commit a crime of terrorism, as 
that offense is described in 18 U.S.C. 2331(5) or 2332b(g)(5);
    (G) Committing or attempting the crime of providing material 
support or resources, as that term is defined in 18 U.S.C. 2339A(b)(1), 
to a terrorist organization; or
    (H) Aiding, abetting, or conspiring in illegal activity with a 
person or organization described in paragraphs (b)(1)(ii)(A) through 
(G) of this section.
    (2) Covered law enforcement tools and records. (i) The policy 
governs the use by law enforcement authorities of subpoenas or, in 
civil matters, other similar compulsory process such as a civil 
investigative demand (collectively ``subpoenas'') to obtain information 
from members of the news media, including documents, testimony, and 
other materials; and the use by law enforcement authorities of 
subpoenas, or court orders issued pursuant to 18 U.S.C. 2703(d) 
(``2703(d) order'') or 18 U.S.C. 3123 (``3123 order''), to obtain from 
third parties ``communications records'' or ``business records'' of 
members of the news media.
    (ii) The policy also governs applications for warrants to search 
the premises or property of members of the news media, pursuant to 
Federal Rule of Criminal Procedure 41; or to obtain from third-party 
``communication service providers'' the communications records of 
members of the news media, pursuant to 18 U.S.C. 2703(a) and (b).
    (3) Definitions. (i)(A) ``Communications records'' include the 
contents of electronic communications as well as source and destination 
information associated with communications, such as email transaction 
logs and local and long distance telephone connection records, stored 
or transmitted by a third-party communication service provider with 
which the member of the news media has a contractual relationship.
    (B) Communications records do not include information described in 
18 U.S.C. 2703(c)(2)(A), (B), (D), (E), and (F).
    (ii) A ``communication service provider'' is a provider of an 
electronic communication service or remote computing service as 
defined, respectively, in 18 U.S.C. 2510(15) and 18 U.S.C. 2711(2).
    (iii)(A) ``Business records'' include records of the activities, 
including the financial transactions, of a member of the news media 
related to the coverage, investigation, or reporting of news, which 
records are generated or maintained by a third party with which the 
member of the news media has a contractual relationship. Business 
records are limited to those that could provide information about the 
newsgathering techniques or sources of a member of the news media.
    (B) Business records do not include records unrelated to ordinary 
newsgathering activities, such as those related to the purely 
commercial, financial, administrative, or technical, operations of a 
news media entity.
    (C) Business records do not include records that are created or 
maintained either by the government or by a contractor on behalf of the 
government.
    (c) Issuing subpoenas to members of the news media, or using 
subpoenas or court orders issued pursuant to 18 U.S.C. 2703(d) or 3123 
to obtain from third parties communications records or business records 
of a member of the news media. (1) Except as set forth in paragraph 
(c)(3) of this section, members of the Department must obtain the 
authorization of the Attorney General to issue a subpoena to a member 
of the news media; or to use a subpoena, 2703(d) order, or 3123 order 
to obtain from a third party communications records or business records 
of a member of the news media.
    (2) Requests for the authorization of the Attorney General for the 
issuance of a subpoena to a member of the news media, or to use a 
subpoena, 2703(d) order, or 3123 order to obtain communications records 
or business records of a member of the news media, must personally be 
endorsed by the United States Attorney or Assistant Attorney General 
responsible for the matter.
    (3) Exceptions to the Attorney General authorization requirement. 
(i)(A) A United States Attorney or Assistant Attorney General 
responsible for the matter may authorize the issuance of a subpoena to 
a member of the news media (e.g., for documents, video or audio 
recordings, testimony, or other materials) if the member of the news 
media expressly agrees to provide the requested information in response 
to a subpoena. This exception applies, but is not limited, to both 
published and unpublished materials and aired and unaired recordings.
    (B) In the case of an authorization under paragraph (c)(3)(i)(A) of 
this section, the United States Attorney or Assistant Attorney General 
responsible for the matter shall provide notice to the Director of the 
Criminal Division's Office of Enforcement Operations within 10 business 
days of the authorization of the issuance of the subpoena.
    (ii) In light of the intent of the policy to protect freedom of the 
press, ordinary newsgathering activities, and confidential news media 
sources, authorization of the Attorney General will not be required of 
members of the Department in the following circumstances:
    (A) To issue subpoenas to news media entities for purely 
commercial, financial, administrative, technical, or other information 
unrelated to ordinary newsgathering activities; or for information or 
records relating to personnel not involved in ordinary newsgathering 
activities.
    (B) To issue subpoenas to members of the news media for information 
related to public comments, messages, or postings by readers, viewers, 
customers, or subscribers, over which the member of the news media does 
not exercise editorial control prior to publication.
    (C) To use subpoenas to obtain information from, or to use 
subpoenas, 2703(d) orders, or 3123 orders to obtain communications 
records or business records of, members of the news media who may be 
perpetrators or victims of, or witnesses to, crimes or other events, 
when such status (as a perpetrator, victim, or witness) is not based 
on, or within the scope of, ordinary newsgathering activities.
    (iii) In the circumstances identified in paragraphs (c)(3)(ii)(A) 
through (C) of this section, the United States Attorney or Assistant 
Attorney General responsible for the matter must--

[[Page 10992]]

    (A) Authorize the use of the subpoena or court order;
    (B) Consult with the Criminal Division regarding appropriate review 
and safeguarding protocols; and
    (C) Provide a copy of the subpoena or court order to the Director 
of the Office of Public Affairs and to the Director of the Criminal 
Division's Office of Enforcement Operations within 10 business days of 
the authorization.
    (4) Considerations for the Attorney General in determining whether 
to authorize the issuance of a subpoena to a member of the news media. 
(i)(A) In criminal matters, there should be reasonable grounds to 
believe, based on public information, or information from non-media 
sources, that a crime has occurred, and that the information sought is 
essential to a successful investigation or prosecution. The subpoena 
should not be used to obtain peripheral, nonessential, or speculative 
information.
    (B) In civil matters, there should be reasonable grounds to 
believe, based on public information or information from non-media 
sources, that the information sought is essential to the successful 
completion of the investigation or litigation in a case of substantial 
importance. The subpoena should not be used to obtain peripheral, 
nonessential, cumulative, or speculative information.
    (ii) The government should have made all reasonable attempts to 
obtain the information from alternative, non-media sources.
    (iii)(A) The government should have pursued negotiations with the 
affected member of the news media, unless the Attorney General 
determines that, for compelling reasons, such negotiations would pose a 
clear and substantial threat to the integrity of the investigation, 
risk grave harm to national security, or present an imminent risk of 
death or serious bodily harm. Where the nature of the investigation 
permits, the government should have explained to the member of the news 
media the government's needs in a particular investigation or 
prosecution, as well as its willingness to address the concerns of the 
member of the news media.
    (B) The obligation to pursue negotiations with the affected member 
of the news media, unless excused by the Attorney General, is not 
intended to conflict with the requirement that members of the 
Department secure authorization from the Attorney General to question a 
member of the news media as required in paragraph (f)(1) of this 
section. Accordingly, members of the Department do not need to secure 
authorization from the Attorney General to pursue negotiations.
    (iv) The proposed subpoena generally should be limited to the 
verification of published information and to such surrounding 
circumstances as relate to the accuracy of the published information.
    (v) In investigations of unauthorized disclosures of national 
defense information or of classified information, where the Director of 
National Intelligence, after consultation with the relevant Department 
or agency head(s), certifies to the Attorney General the significance 
of the harm raised by the unauthorized disclosure and that the 
information disclosed was properly classified and reaffirms the 
intelligence community's continued support for the investigation and 
prosecution, the Attorney General may authorize the Department, in such 
investigations, to issue subpoenas to members of the news media. The 
certification will be sought not more than 30 days prior to the 
submission of the approval request to the Attorney General.
    (vi) Requests should be treated with care to avoid interference 
with ordinary newsgathering activities or claims of harassment.
    (vii) The proposed subpoena should be narrowly drawn. It should be 
directed at material and relevant information regarding a limited 
subject matter, should cover a reasonably limited period of time, 
should avoid requiring production of a large volume of material, and 
should give reasonable and timely notice of the demand.
    (5) Considerations for the Attorney General in determining whether 
to authorize the use of a subpoena, 2703(d) order, or 3123 order to 
obtain from third parties the communications records or business 
records of a member of the news media. (i)(A) In criminal matters, 
there should be reasonable grounds to believe, based on public 
information, or information from non-media sources, that a crime has 
been committed, and that the information sought is essential to the 
successful investigation or prosecution of that crime. The subpoena or 
court order should not be used to obtain peripheral, nonessential, or 
speculative information.
    (B) In civil matters, there should be reasonable grounds to 
believe, based on public information, or information from non-media 
sources, that the information sought is essential to the successful 
completion of the investigation or litigation in a case of substantial 
importance. The subpoena should not be used to obtain peripheral, 
nonessential, cumulative, or speculative information.
    (ii) The use of a subpoena or court order to obtain from a third 
party communications records or business records of a member of the 
news media should be pursued only after the government has made all 
reasonable attempts to obtain the information from alternative sources.
    (iii)(A) The government should have pursued negotiations with the 
affected member of the news media, unless the Attorney General 
determines that, for compelling reasons, such negotiations would pose a 
clear and substantial threat to the integrity of the investigation, 
risk grave harm to national security, or present an imminent risk of 
death or serious bodily harm.
    (B) The obligation to pursue negotiations with the affected member 
of the news media, unless excused by the Attorney General, is not 
intended to conflict with the requirement that members of the 
Department secure authorization from the Attorney General to question a 
member of the news media as set forth in paragraph (f)(1) of this 
section. Accordingly, members of the Department do not need to secure 
authorization from the Attorney General to pursue negotiations.
    (iv) In investigations of unauthorized disclosures of national 
defense information or of classified information, where the Director of 
National Intelligence, after consultation with the relevant Department 
or agency head(s), certifies to the Attorney General the significance 
of the harm raised by the unauthorized disclosure and that the 
information disclosed was properly classified and reaffirms the 
intelligence community's continued support for the investigation and 
prosecution, the Attorney General may authorize the Department, in such 
investigations, to use subpoenas or court orders issued pursuant to 18 
U.S.C. 2703(d) or 3123 to obtain communications records or business 
records of a member of the news media. The certification will be sought 
not more than 30 days prior to the submission of the approval request 
to the Attorney General.
    (v) The proposed subpoena or court order should be narrowly drawn. 
It should be directed at material and relevant information regarding a 
limited subject matter, should cover a reasonably limited period of 
time, and should avoid requiring production of a large volume of 
material.
    (vi) If appropriate, investigators should propose to use search 
protocols designed to minimize intrusion into potentially protected 
materials or

[[Page 10993]]

newsgathering activities unrelated to the investigation, including but 
not limited to keyword searches (for electronic searches) and filter 
teams (reviewing teams separate from the prosecution and investigative 
teams).
    (d) Applying for warrants to search the premises, property, or 
communications records of members of the news media. (1) Except as set 
forth in paragraph (d)(4) of this section, members of the Department 
must obtain the authorization of the Attorney General to apply for a 
warrant to search the premises, property, or communications records of 
a member of the news media.
    (2) All requests for authorization of the Attorney General to apply 
for a warrant to search the premises, property, or communications 
records of a member of the news media must personally be endorsed by 
the United States Attorney or Assistant Attorney General responsible 
for the matter.
    (3) In determining whether to authorize an application for a 
warrant to search the premises, property, or contents of communications 
records of a member of the news media, the Attorney General should take 
into account the considerations identified in paragraph (c)(5) of this 
section.
    (4) Members of the Department may apply for a warrant to obtain 
work product materials or other documentary materials of a member of 
the news media pursuant to the ``suspect exception'' of the Privacy 
Protection Act (``PPA suspect exception''), 42 U.S.C. 2000aa(a)(1) and 
(b)(1), only when the member of the news media is a focus of a criminal 
investigation for conduct not based on, or within the scope of, 
ordinary newsgathering activities. In such instances, members of the 
Department must secure authorization from a Deputy Assistant Attorney 
General for the Criminal Division.
    (5) Members of the Department should not be authorized to apply for 
a warrant to obtain work product materials or other documentary 
materials of a member of the news media under the PPA suspect 
exception, 42 U.S.C. 2000aa(a)(1) & (b)(1), if the sole purpose is to 
further the investigation of a person other than the member of the news 
media.
    (6) A Deputy Assistant Attorney General for the Criminal Division 
may authorize, under an applicable PPA exception, an application for a 
warrant to search the premises, property, or communications records of 
an individual other than a member of the news media, but who is 
reasonably believed to have ``a purpose to disseminate to the public a 
newspaper, book, broadcast, or other similar form of public 
communication.'' 42 U.S.C. 2000aa(a) and (b).
    (7) In executing a warrant authorized by the Attorney General or by 
a Deputy Assistant Attorney General for the Criminal Division 
investigators should use search protocols designed to minimize 
intrusion into potentially protected materials or newsgathering 
activities unrelated to the investigation, including but not limited to 
keyword searches (for electronic searches) and filter teams (reviewing 
teams separate from the prosecution and investigative teams).
    (e) Notice to affected member of the news media. (1)(i) When the 
Attorney General has authorized the use of a subpoena, court order, or 
warrant to obtain from a third party communications records or business 
records of a member of the news media, the affected member of the news 
media shall be given reasonable and timely notice of the Attorney 
General's determination before the use of the subpoena, court order, or 
warrant, unless the Attorney General determines that, for compelling 
reasons, such notice would pose a clear and substantial threat to the 
integrity of the investigation, risk grave harm to national security, 
or present an imminent risk of death or serious bodily harm.
    (ii) The mere possibility that notice to the affected member of the 
news media, and potential judicial review, might delay the 
investigation is not, on its own, a compelling reason to delay notice.
    (2) When the Attorney General has authorized the use of a subpoena, 
court order, or warrant to obtain communications records or business 
records of a member of the news media, and the affected member of the 
news media has not been given notice of the Attorney General's 
determination before the use of the subpoena, court order, or warrant, 
the United States Attorney or Assistant Attorney General responsible 
for the matter shall provide to the affected member of the news media 
notice of the order or warrant as soon as it is determined that such 
notice will no longer pose a clear and substantial threat to the 
integrity of the investigation, risk grave harm to national security, 
or present an imminent risk of death or serious bodily harm. In any 
event, such notice shall occur within 45 days of the government's 
receipt of any return made pursuant to the subpoena, court order, or 
warrant, except that the Attorney General may authorize delay of notice 
for an additional 45 days if he or she determines that, for compelling 
reasons, such notice would pose a clear and substantial threat to the 
integrity of the investigation, risk grave harm to national security, 
or present an imminent risk of death or serious bodily harm. No further 
delays may be sought beyond the 90-day period.
    (3) The United States Attorney or Assistant Attorney General 
responsible for the matter shall provide to the Director of the Office 
of Public Affairs and to the Director of the Criminal Division's Office 
of Enforcement Operations a copy of any notice to be provided to a 
member of the news media whose communications records or business 
records were sought or obtained at least 10 business days before such 
notice is provided to the affected member of the news media, and 
immediately after such notice is, in fact, provided to the affected 
member of the news media.
    (f) Questioning members of the news media about, arresting members 
of the news media for, or charging members of the news media with, 
criminal conduct they are suspected of having committed in the course 
of, or arising out of, the coverage or investigation of news, or while 
engaged in the performance of duties undertaken as members of the news 
media. (1) No member of the Department shall subject a member of the 
news media to questioning as to any offense that he or she is suspected 
of having committed in the course of, or arising out of, the coverage 
or investigation of news, or while engaged in the performance of duties 
undertaken as a member of the news media, without notice to the 
Director of the Office of Public Affairs and the express authorization 
of the Attorney General. The government need not view the member of the 
news media as a subject or target of an investigation, or have the 
intent to prosecute the member of the news media, to trigger the 
requirement that the Attorney General must authorize such questioning.
    (2) No member of the Department shall seek a warrant for an arrest, 
or conduct an arrest, of a member of the news media for any offense 
that he or she is suspected of having committed in the course of, or 
arising out of, the coverage or investigation of news, or while engaged 
in the performance of duties undertaken as a member of the news media, 
without notice to the Director of the Office of Public Affairs and the 
express authorization of the Attorney General.
    (3) No member of the Department shall present information to a 
grand jury seeking a bill of indictment, or file an information, 
against a member of the

[[Page 10994]]

news media for any offense that he or she is suspected of having 
committed in the course of, or arising out of, the coverage or 
investigation of news, or while engaged in the performance of duties 
undertaken as a member of the news media, without notice to the 
Director of the Office of Public Affairs and the express authorization 
of the Attorney General.
    (4) In requesting the Attorney General's authorization to question, 
to arrest or to seek an arrest warrant for, or to present information 
to a grand jury seeking an indictment or to file an information 
against, a member of the news media for an offense that he or she is 
suspected of having committed during the course of, or arising out of, 
the coverage or investigation of news, or while engaged in the 
performance of duties undertaken as a member of the news media, a 
member of the Department shall state all facts necessary for a 
determination by the Attorney General.
    (g) Exigent circumstances. (1) A Deputy Assistant Attorney General 
for the Criminal Division may authorize the use of a subpoena or court 
order, as described in paragraph (c) of this section, or the 
questioning, arrest, or charging of a member of the news media, as 
described in paragraph (f) of this section, if he or she determines 
that the exigent use of such law enforcement tool or technique is 
necessary to prevent or mitigate an act of terrorism; other acts that 
are reasonably likely to cause significant and articulable harm to 
national security; death; kidnapping; substantial bodily harm; conduct 
that constitutes a specified offense against a minor (for example, as 
those terms are defined in section 111 of the Adam Walsh Child 
Protection and Safety Act of 2006, 42 U.S.C. 16911), or an attempt or 
conspiracy to commit such a criminal offense; or incapacitation or 
destruction of critical infrastructure (for example, as defined in 
section 1016(e) of the USA PATRIOT Act, 42 U.S.C. 5195c(e)).
    (2) A Deputy Assistant Attorney General for the Criminal Division 
may authorize an application for a warrant, as described in paragraph 
(d) of this section, if there is reason to believe that the immediate 
seizure of the materials at issue is necessary to prevent the death of, 
or serious bodily injury to, a human being, as provided in 42 U.S.C. 
2000aa(a)(2) and (b)(2).
    (3) Within 10 business days of a Deputy Assistant Attorney General 
for the Criminal Division approving a request under paragraph (g) of 
this section, the United States Attorney or Assistant Attorney General 
responsible for the matter shall provide to the Attorney General and to 
the Director of the Office of Public Affairs a statement containing the 
information that would have been given in requesting prior 
authorization.
    (h) Failure to comply with policy. Failure to obtain the prior 
approval of the Attorney General, as required by this policy, may 
constitute grounds for an administrative reprimand or other appropriate 
disciplinary action.
    (i) General provision. This policy is not intended to, and does 
not, create any right or benefit, substantive or procedural, 
enforceable at law or in equity by any party against the United States, 
its departments, agencies, or entities, its officers, employees, or 
agents, or any other person.

PART 59--GUIDELINES ON METHODS OF OBTAINING DOCUMENTARY MATERIALS 
HELD BY THIRD PARTIES

0
3. The authority citation for part 59 continues to read as follows:

    Authority: Sec. 201, Pub. L. 96-440, 94 Stat. 1879 (42 U.S.C. 
2000aa-11).


0
4. Section 59.3 is revised by adding a new sentence at the end of 
paragraph (d) to read as follows:


Sec.  59.3   Applicability.

* * * * *
    (d) * * * For the use of a warrant to obtain information from, or 
records of, members of the news media, see the Department's statement 
of policy set forth in Sec.  50.10 of this chapter.

    Dated: February 21, 2013.
Eric H. Holder, Jr.,
Attorney General.
[FR Doc. 2014-04239 Filed 2-26-14; 8:45 am]
BILLING CODE 4410-14-P