Policy Regarding Obtaining Information From, or Records of, Members of the News Media; and Regarding Questioning, Arresting, or Charging Members of the News Media, 2819-2824 [2015-00919]
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Federal Register / Vol. 80, No. 13 / Wednesday, January 21, 2015 / Rules and Regulations
(g) Inspection
Within 1,000 flight hours after the effective
date of this AD: Do a detailed inspection of
the bonding lead routing above the 120VU
shelf for damage (i.e., wire chafing, evidence
of burning) or incorrect routing, in
accordance with the Accomplishment
Instructions of ATR Service Bulletin ATR42–
92–0025, dated November 7, 2013 (for Model
ATR42–500 airplanes); or ATR Service
Bulletin ATR72–92–1034, dated November 7,
2013 (for Model ATR72–212A airplanes).
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(h) Corrective Actions
(1) If, during the inspection required by
paragraph (g) of this AD, any incorrect
routing is found: Before further flight, modify
the bonding lead routing above the 120VU
shelf, in accordance with the
Accomplishment Instructions of ATR Service
Bulletin ATR42–92–0025, dated November 7,
2013 (for Model ATR42–500 airplanes); or
ATR Service Bulletin ATR72–92–1034, dated
November 7, 2013 (for Model ATR72–212A
airplanes).
(2) If, during the inspection required by
paragraph (g) of this AD, any damage (i.e.,
wire chafing, evidence of burning) is found:
Before further flight, repair using a method
approved by the Manager, International
Branch, ANM–116, Transport Airplane
Directorate, FAA.
(i) Other FAA AD Provisions
The following provisions also apply to this
AD:
(1) Alternative Methods of Compliance
(AMOCs): The Manager, International
Branch, ANM–116, Transport Airplane
Directorate, FAA, has the authority to
approve AMOCs for this AD, if requested
using the procedures found in 14 CFR 39.19.
In accordance with 14 CFR 39.19, send your
request to your principal inspector or local
Flight Standards District Office, as
appropriate. If sending information directly
to the International Branch, send it to ATTN:
Tom Rodriguez, Aerospace Engineer,
International Branch, ANM–116, Transport
Airplane Directorate, FAA, 1601 Lind
Avenue SW., Renton, WA 98057–3356;
telephone 425–227–1137; fax 425–227–1149.
Information may be emailed to: 9-ANM-116AMOC-REQUESTS@faa.gov. Before using
any approved AMOC, notify your appropriate
principal inspector, or lacking a principal
inspector, the manager of the local flight
standards district office/certificate holding
district office. The AMOC approval letter
must specifically reference this AD.
(2) Contacting the Manufacturer: For any
requirement in this AD to obtain corrective
actions from a manufacturer, the action must
be accomplished using a method approved
by the Manager, International Branch, ANM–
116, Transport Airplane Directorate, FAA; or
the European Aviation Safety Agency
(EASA); or ATR—GIE Avions de Transport
´
Regional’s EASA Design Organization
Approval (DOA). If approved by the DOA,
the approval must include the DOAauthorized signature.
(j) Related Information
Refer to Mandatory Continuing
Airworthiness Information (MCAI) European
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Aviation Safety Agency Airworthiness
Directive 2014–0056, dated March 7, 2014,
for related information. This MCAI may be
found in the AD docket on the Internet at
https://www.regulations.gov/
#!documentDetail;D=FAA-2014-0530-0002.
(k) Material Incorporated by Reference
(1) The Director of the Federal Register
approved the incorporation by reference
(IBR) of the service information listed in this
paragraph under 5 U.S.C. 552(a) and 1 CFR
part 51.
(2) You must use this service information
as applicable to do the actions required by
this AD, unless this AD specifies otherwise.
(i) ATR Service Bulletin ATR42–92–0025,
dated November 7, 2013.
(ii) ATR Service Bulletin ATR72–92–1034,
dated November 7, 2013.
(3) For service information identified in
this AD, contact ATR—GIE Avions de
´
´
Transport Regional, 1, Allee Pierre Nadot,
31712 Blagnac Cedex, France; telephone +33
(0) 5 62 21 62 21; fax +33 (0) 5 62 21 67 18;
email continued.airworthiness@atr.fr;
Internet https://www.aerochain.com.
(4) You may view this service information
at the FAA, Transport Airplane Directorate,
1601 Lind Avenue SW., Renton, WA. For
information on the availability of this
material at the FAA, call 425–227–1221.
(5) You may view this service information
that is incorporated by reference at the
National Archives and Records
Administration (NARA). For information on
the availability of this material at NARA, call
202–741–6030, or go to: https://
www.archives.gov/federal-register/cfr/ibrlocations.html.
Issued in Renton, Washington, on
December 19, 2014.
Michael Kaszycki,
Acting Manager, Transport Airplane
Directorate, Aircraft Certification Service.
[FR Doc. 2014–30914 Filed 1–20–15; 8:45 am]
BILLING CODE 4910–13–P
DEPARTMENT OF JUSTICE
28 CFR Part 50
2819
regarding questioning, arresting, or
charging members of the news media.
This rule is effective on January
21, 2015.
DATES:
FOR FURTHER INFORMATION CONTACT:
Monique Roth, Director, Office of
Enforcement Operations, Criminal
Division, (202) 514–6809.
SUPPLEMENTARY INFORMATION:
Discussion
On February 21, 2014, the Attorney
General issued revisions to the
Department’s policy regarding obtaining
information from, or records of,
members of the news media; and
regarding questioning, arresting, or
charging members of the news media. In
response to comments from federal
prosecutors and other interested parties,
including news media representatives,
the Attorney General is issuing this final
rule to revise the existing provisions in
the Department’s regulations at 28 CFR
50.10.
Most of the revisions are intended to
ensure both consistent interpretation
and application of the policy and the
highest level of oversight when
members of the Department seek to
obtain information from, or records of,
a member of the news media. Other
substantive revisions are intended to
clarify the scope of the policy.
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).
[Docket No. 145; AG Order No. 3486–2015]
Regulatory Flexibility Act
Policy Regarding Obtaining
Information From, or Records of,
Members of the News Media; and
Regarding Questioning, Arresting, or
Charging Members of the News Media
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.
Office of the Attorney General,
Department of Justice.
ACTION: Final rule.
AGENCY:
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
SUMMARY:
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Federal Register / Vol. 80, No. 13 / Wednesday, January 21, 2015 / Rules and Regulations
Executive Orders 12866 and 13563—
Regulatory Planning and Review
Code of Federal Regulations is amended
as follows:
This action has been drafted and
reviewed in accordance with Executive
Order 12866 of September 30, 1993,
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, 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.
PART 50—STATEMENTS OF POLICY
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.
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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 in 28 CFR Part 50
Administrative practice and
procedure, Crime, News, Media,
Subpoena, Search warrants.
Accordingly, for the reasons stated in
the preamble, part 50 of title 28 of the
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1. The authority citation for part 50
continues 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:
■
§ 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 newsgathering
activities. The policy is not intended to
extend special protections to members
of the news media who are subjects or
targets of criminal investigations for
conduct not based on, or within the
scope of, 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. In particular, subpoenas or
court orders issued pursuant to 18
U.S.C. 2703(d) or 3123 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;
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and after negotiations with the affected
member of the news media have been
pursued and appropriate notice to the
affected member of the news media has
been provided, unless the Attorney
General determines that, for compelling
reasons, such negotiations or 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.
(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
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
where there are reasonable grounds to
believe that the individual or entity is—
(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 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
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resources to terrorists, as that offense is
defined in 18 U.S.C. 2339A; 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
or business 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
work product and other documentary
materials, and records of the activities,
including the financial transactions, of a
member of the news media related to
the coverage, investigation, or reporting
of news. Business records are limited to
those generated or maintained by a third
party with which the member of the
news media has a contractual
relationship, and which could provide
information about the newsgathering
techniques or sources of a member of
the news media.
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(B) Business records do not include
records unrelated to 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 be personally 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 this policy
to protect freedom of the press,
newsgathering activities, and
confidential news media sources,
authorization of the Attorney General
will not be required of members of the
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2821
Department in the following
circumstances:
(A) To issue subpoenas to news media
entities for purely commercial,
financial, administrative, technical, or
other information unrelated to
newsgathering activities; or for
information or records relating to
personnel not involved in
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, 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—
(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) In
matters in which a member of the
Department determines that a member
of the news media is a subject or target
of an investigation relating to an offense
committed in the course of, or arising
out of, newsgathering activities, the
member of the Department requesting
Attorney General authorization to issue
a subpoena to a member of the news
media shall provide all facts necessary
for determinations by the Attorney
General regarding both whether the
member of the news media is a subject
or target of the investigation and
whether to authorize the issuance of
such subpoena. If the Attorney General
determines that the member of the news
media is a subject or target of an
investigation relating to an offense
committed in the course of, or arising
out of, newsgathering activities, the
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Attorney General’s determination
regarding the issuance of the proposed
subpoena should take into account the
principles reflected in paragraph (a) of
this section, but need not take into
account the considerations identified in
paragraphs (c)(4)(ii) through (viii) of this
section.
(ii)(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.
(iii) The government should have
made all reasonable attempts to obtain
the information from alternative, nonmedia sources.
(iv)(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.
(v) The proposed subpoena generally
should be limited to the verification of
published information and to such
surrounding circumstances as relate to
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the accuracy of the published
information.
(vi) In investigations or prosecutions
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 or prosecution, the
Attorney General may authorize
members of the Department, in such
investigations, to issue subpoenas to
members of the news media. The
certification, which the Attorney
General should take into account along
with other considerations identified in
paragraphs (c)(4)(ii) through (viii) of this
section, will be sought not more than 30
days prior to the submission of the
approval request to the Attorney
General.
(vii) Requests should be treated with
care to avoid interference with
newsgathering activities and to avoid
claims of harassment.
(viii) 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) In matters in
which a member of the Department
determines that a member of the news
media is a subject or target of an
investigation relating to an offense
committed in the course of, or arising
out of, newsgathering activities, the
member of the Department requesting
Attorney General authorization to use a
subpoena, 2703(d) order, or 3123 order
to obtain from a third party the
communications records or business
records of a member of the news media
shall provide all facts necessary for
determinations by the Attorney General
regarding both whether the member of
the news media is a subject or target of
the investigation and whether to
authorize the use of such subpoena or
order. If the Attorney General
determines that the member of the news
media is a subject or target of an
investigation relating to an offense
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committed in the course of, or arising
out of, newsgathering activities, the
Attorney General’s determination
regarding the use of the proposed
subpoena or order should take into
account the principles reflected in
paragraph (a) of this section, but need
not take into account the considerations
identified in paragraphs (c)(5)(ii)
through (viii) of this section.
(ii)(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,
cumulative, 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.
(iii) 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.
(iv)(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.
(v) In investigations or prosecutions of
unauthorized disclosures of national
defense information or of classified
information, where the Director of
National Intelligence, after consultation
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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 or prosecution, the
Attorney General may authorize
members of 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, which the Attorney
General should take into account along
with the other considerations identified
in paragraph (c)(5) of this section, 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
newsgathering activities and to avoid
claims of harassment.
(vii) 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.
(viii) If appropriate, investigators
should propose to 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).
(6) When the Attorney General has
authorized the issuance of a subpoena to
a member of the news media; or the use
of 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,
members of the Department must
consult with the Criminal Division
before moving to compel compliance
with any such subpoena or court order.
(d) Applying for warrants to search
the premises, property, communications
records, or business 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, communications
records, or business 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,
VerDate Sep<11>2014
15:02 Jan 20, 2015
Jkt 235001
property, communications records, or
business records of a member of the
news media must be personally
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,
communications records, or business
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), (b)(1), when the member of
the news media is a subject or target of
a criminal investigation for conduct not
based on, or within the scope of,
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,
communications records, or business
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), (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.
(e) Notice to affected member of the
news media. (1)(i) In matters in which
the Attorney General has both
determined that a member of the news
media is a subject or target of an
PO 00000
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Fmt 4700
Sfmt 4700
2823
investigation relating to an offense
committed in the course of, or arising
out of, newsgathering activities, and
authorized the use of a subpoena, court
order, or warrant to obtain from a third
party the communications records or
business records of a member of the
news media pursuant to paragraph
(c)(4)(i), (c)(5)(i), or (d)(1) of this section,
members of the Department are not
required to provide notice of the
Attorney General’s authorization to the
affected member of the news media. The
Attorney General nevertheless may
direct that notice be provided.
(ii) If the Attorney General does not
direct that notice be provided, the
United States Attorney or Assistant
Attorney General responsible for the
matter shall provide to the Attorney
General every 90 days an update
regarding the status of the investigation,
which update shall include an
assessment of any harm to the
investigation that would be caused by
providing notice to the affected member
of the news media. The Attorney
General shall consider such update in
determining whether to direct that
notice be provided.
(2)(i) Except as set forth in paragraph
(e)(1) of this section, 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.
(3) 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,
pursuant to paragraph (e)(2) of this
section, 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
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Federal Register / Vol. 80, No. 13 / Wednesday, January 21, 2015 / Rules and Regulations
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.
(4) 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, arresting, or charging
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,
newsgathering activities without first
providing notice to the Director of the
Office of Public Affairs and obtaining
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,
newsgathering activities without first
providing notice to the Director of the
Office of Public Affairs and obtaining
VerDate Sep<11>2014
15:02 Jan 20, 2015
Jkt 235001
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
news media for any offense that he or
she is suspected of having committed in
the course of, or arising out of
newsgathering activities, without first
providing notice to the Director of the
Office of Public Affairs and obtaining
the express authorization of the
Attorney General.
(4) In requesting the Attorney
General’s authorization to question, to
seek an arrest warrant for or to arrest, or
to present information to a grand jury
seeking an indictment or to file an
information against, a member of the
news media as provided in paragraphs
(f)(1) through (3) of this section,
members of the Department shall
provide all facts necessary for a
determination by the Attorney General.
(5) In determining whether to grant a
request for authorization to question, to
seek an arrest warrant for or to arrest, or
to present information to a grand jury
seeking an indictment or to file an
information against, a member of the
news media, the Attorney General
should take into account the
considerations reflected in the
Statement of Principles in paragraph (a)
of this section.
(g) Exigent circumstances. (1)(i) 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)).
(ii) 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
PO 00000
Frm 00012
Fmt 4700
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of, or serious bodily injury to, a human
being, as provided in 42 U.S.C.
2000aa(a)(2) and (b)(2).
(2) Within 10 business days of the
approval by a Deputy Assistant Attorney
General for the Criminal Division of 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 provided in a request for
prior authorization.
(h) Safeguarding. Any information or
records obtained from members of the
news media or from third parties
pursuant to this policy shall be closely
held so as to prevent disclosure of the
information to unauthorized persons or
for improper purposes. Members of the
Department should consult the United
States Attorneys’ Manual for specific
guidance regarding the safeguarding of
information or records obtained from
members of the news media or from
third parties pursuant to this policy.
(i) 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.
(j) 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.
Dated: January 14, 2015.
Eric H. Holder, Jr.,
Attorney General.
[FR Doc. 2015–00919 Filed 1–20–15; 8:45 am]
BILLING CODE 4410–14–P
DEPARTMENT OF HOMELAND
SECURITY
Coast Guard
33 CFR Part 165
[Docket No. USCG–2013–0654]
RIN 1625–AA00
Safety Zone; SFOBB Demolition Safety
Zone, San Francisco, CA
Coast Guard, DHS.
Temporary final rule.
AGENCY:
ACTION:
The Coast Guard is
establishing a temporary safety zone in
the navigable waters of the San
SUMMARY:
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]]>Agencies
[Federal Register Volume 80, Number 13 (Wednesday, January 21, 2015)]
[Rules and Regulations]
[Pages 2819-2824]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2015-00919]
=======================================================================
-----------------------------------------------------------------------
DEPARTMENT OF JUSTICE
28 CFR Part 50
[Docket No. 145; AG Order No. 3486-2015]
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 January 21, 2015.
FOR FURTHER INFORMATION CONTACT: Monique Roth, Director, Office of
Enforcement Operations, Criminal Division, (202) 514-6809.
SUPPLEMENTARY INFORMATION:
Discussion
On February 21, 2014, the Attorney General issued revisions to the
Department's policy regarding obtaining information from, or records
of, members of the news media; and regarding questioning, arresting, or
charging members of the news media. In response to comments from
federal prosecutors and other interested parties, including news media
representatives, the Attorney General is issuing this final rule to
revise the existing provisions in the Department's regulations at 28
CFR 50.10.
Most of the revisions are intended to ensure both consistent
interpretation and application of the policy and the highest level of
oversight when members of the Department seek to obtain information
from, or records of, a member of the news media. Other substantive
revisions are intended to clarify the scope of the policy.
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.
[[Page 2820]]
Executive Orders 12866 and 13563--Regulatory Planning and Review
This action has been drafted and reviewed in accordance with
Executive Order 12866 of September 30, 1993, 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, 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 in 28 CFR Part 50
Administrative practice and procedure, Crime, News, Media,
Subpoena, Search warrants.
Accordingly, for the reasons stated in the preamble, part 50 of
title 28 of the Code of Federal Regulations is amended as follows:
PART 50--STATEMENTS OF POLICY
0
1. The authority citation for part 50 continues 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 newsgathering activities. The policy is not intended to extend
special protections to members of the news media who are subjects or
targets of criminal investigations for conduct not based on, or within
the scope of, 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. In particular, subpoenas or court
orders issued pursuant to 18 U.S.C. 2703(d) or 3123 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 and appropriate notice to the affected
member of the news media has been provided, unless the Attorney General
determines that, for compelling reasons, such negotiations or 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.
(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 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 where there are reasonable grounds to believe that the
individual or entity is--
(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 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
[[Page 2821]]
resources to terrorists, as that offense is defined in 18 U.S.C. 2339A;
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 or
business 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 work product and other
documentary materials, and records of the activities, including the
financial transactions, of a member of the news media related to the
coverage, investigation, or reporting of news. Business records are
limited to those generated or maintained by a third party with which
the member of the news media has a contractual relationship, and which
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
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 be personally
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 this policy to protect freedom of
the press, 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 newsgathering activities; or for information or records
relating to personnel not involved in 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, 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--
(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) In matters in which a member of the Department determines that a
member of the news media is a subject or target of an investigation
relating to an offense committed in the course of, or arising out of,
newsgathering activities, the member of the Department requesting
Attorney General authorization to issue a subpoena to a member of the
news media shall provide all facts necessary for determinations by the
Attorney General regarding both whether the member of the news media is
a subject or target of the investigation and whether to authorize the
issuance of such subpoena. If the Attorney General determines that the
member of the news media is a subject or target of an investigation
relating to an offense committed in the course of, or arising out of,
newsgathering activities, the
[[Page 2822]]
Attorney General's determination regarding the issuance of the proposed
subpoena should take into account the principles reflected in paragraph
(a) of this section, but need not take into account the considerations
identified in paragraphs (c)(4)(ii) through (viii) of this section.
(ii)(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.
(iii) The government should have made all reasonable attempts to
obtain the information from alternative, non-media sources.
(iv)(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.
(v) 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.
(vi) In investigations or prosecutions 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 or
prosecution, the Attorney General may authorize members of the
Department, in such investigations, to issue subpoenas to members of
the news media. The certification, which the Attorney General should
take into account along with other considerations identified in
paragraphs (c)(4)(ii) through (viii) of this section, will be sought
not more than 30 days prior to the submission of the approval request
to the Attorney General.
(vii) Requests should be treated with care to avoid interference
with newsgathering activities and to avoid claims of harassment.
(viii) 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) In matters in which a member
of the Department determines that a member of the news media is a
subject or target of an investigation relating to an offense committed
in the course of, or arising out of, newsgathering activities, the
member of the Department requesting Attorney General authorization to
use a subpoena, 2703(d) order, or 3123 order to obtain from a third
party the communications records or business records of a member of the
news media shall provide all facts necessary for determinations by the
Attorney General regarding both whether the member of the news media is
a subject or target of the investigation and whether to authorize the
use of such subpoena or order. If the Attorney General determines that
the member of the news media is a subject or target of an investigation
relating to an offense committed in the course of, or arising out of,
newsgathering activities, the Attorney General's determination
regarding the use of the proposed subpoena or order should take into
account the principles reflected in paragraph (a) of this section, but
need not take into account the considerations identified in paragraphs
(c)(5)(ii) through (viii) of this section.
(ii)(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, cumulative, 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.
(iii) 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.
(iv)(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.
(v) In investigations or prosecutions of unauthorized disclosures
of national defense information or of classified information, where the
Director of National Intelligence, after consultation
[[Page 2823]]
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 or prosecution, the Attorney General may
authorize members of 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, which the Attorney General should take
into account along with the other considerations identified in
paragraph (c)(5) of this section, 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 newsgathering activities and to avoid claims of harassment.
(vii) 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.
(viii) If appropriate, investigators should propose to 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).
(6) When the Attorney General has authorized the issuance of a
subpoena to a member of the news media; or the use of 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, members of the Department must consult with the Criminal
Division before moving to compel compliance with any such subpoena or
court order.
(d) Applying for warrants to search the premises, property,
communications records, or business 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,
communications records, or business 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, communications records,
or business records of a member of the news media must be personally
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, communications records, or
business 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),
(b)(1), when the member of the news media is a subject or target of a
criminal investigation for conduct not based on, or within the scope
of, 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, communications records, or
business 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), (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.
(e) Notice to affected member of the news media. (1)(i) In matters
in which the Attorney General has both determined that a member of the
news media is a subject or target of an investigation relating to an
offense committed in the course of, or arising out of, newsgathering
activities, and authorized the use of a subpoena, court order, or
warrant to obtain from a third party the communications records or
business records of a member of the news media pursuant to paragraph
(c)(4)(i), (c)(5)(i), or (d)(1) of this section, members of the
Department are not required to provide notice of the Attorney General's
authorization to the affected member of the news media. The Attorney
General nevertheless may direct that notice be provided.
(ii) If the Attorney General does not direct that notice be
provided, the United States Attorney or Assistant Attorney General
responsible for the matter shall provide to the Attorney General every
90 days an update regarding the status of the investigation, which
update shall include an assessment of any harm to the investigation
that would be caused by providing notice to the affected member of the
news media. The Attorney General shall consider such update in
determining whether to direct that notice be provided.
(2)(i) Except as set forth in paragraph (e)(1) of this section,
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.
(3) 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, pursuant to paragraph (e)(2) of
this section, 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
[[Page 2824]]
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.
(4) 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, arresting, or charging 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, newsgathering
activities without first providing notice to the Director of the Office
of Public Affairs and obtaining 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, newsgathering activities without first providing notice
to the Director of the Office of Public Affairs and obtaining 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 news media for any offense that he or she is
suspected of having committed in the course of, or arising out of
newsgathering activities, without first providing notice to the
Director of the Office of Public Affairs and obtaining the express
authorization of the Attorney General.
(4) In requesting the Attorney General's authorization to question,
to seek an arrest warrant for or to arrest, or to present information
to a grand jury seeking an indictment or to file an information
against, a member of the news media as provided in paragraphs (f)(1)
through (3) of this section, members of the Department shall provide
all facts necessary for a determination by the Attorney General.
(5) In determining whether to grant a request for authorization to
question, to seek an arrest warrant for or to arrest, or to present
information to a grand jury seeking an indictment or to file an
information against, a member of the news media, the Attorney General
should take into account the considerations reflected in the Statement
of Principles in paragraph (a) of this section.
(g) Exigent circumstances. (1)(i) 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)).
(ii) 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).
(2) Within 10 business days of the approval by a Deputy Assistant
Attorney General for the Criminal Division of 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 provided in a request
for prior authorization.
(h) Safeguarding. Any information or records obtained from members
of the news media or from third parties pursuant to this policy shall
be closely held so as to prevent disclosure of the information to
unauthorized persons or for improper purposes. Members of the
Department should consult the United States Attorneys' Manual for
specific guidance regarding the safeguarding of information or records
obtained from members of the news media or from third parties pursuant
to this policy.
(i) 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.
(j) 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.
Dated: January 14, 2015.
Eric H. Holder, Jr.,
Attorney General.
[FR Doc. 2015-00919 Filed 1-20-15; 8:45 am]
BILLING CODE 4410-14-P
