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]
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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
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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:
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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
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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:
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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
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§ 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.
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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
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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
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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
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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—
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(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
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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,
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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
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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,
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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
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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
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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
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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
