About Those New DOJ Guideline on Reporters’ Records: There’s Less Here Than Meets the Eye

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On Friday, Attorney General Eric Holder issued a new set of guidelines designed to make it harder for law enforcement officials to seize the records of journalists:

Among other things, the rules create a presumption that prosecutors generally will provide advance notice to the news media when seeking to obtain their communications records….The rules also address a law forbidding search warrants for journalists’ work materials, except when the reporter is a criminal suspect. It says that the exception cannot be invoked for conduct based on “ordinary news-gathering activities.”

….The rules cover grand jury subpoenas used in criminal investigations. They exempt wiretap and search warrants obtained under the Foreign Intelligence Surveillance Act and “national security letters,” a kind of administrative subpoena used to obtain records about communications in terrorism and counterespionage investigations.

But Marcy Wheeler points out that most of the DOJ leak investigations that prompted media outrage last year and led to these new rules are, in fact, related to national security. And NSLs have the least oversight of any form of subpoena: they can be issued by just about anyone, and require no approval from a court.

Does this mean, as Wheeler pungently puts it, that these new guidelines are “worth approximately shit” in any leak investigation that’s actually likely to take place? I’m not sure about that. You can’t get a wiretap with an NSL, for example. Still, it certainly seems to be a Mack-truck-sized loophole in these new rules. There’s less here than meets the eye.

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Fact:

In-depth journalism that investigates the powerful takes real money and is so damn important right now.But it doesn’t take a Mother Jones investigation to know that billionaires and corporations will never fund the type of reporting (like they do politicians) we do that exists to help bring about change. Instead, our mission-driven journalism is made possible by people power, and has been for 46 years now since our founding as a non-profit.

In “TITLE TK” Monica Bauerlein writes about the perilous moment we’re in, and why it’s so important that we raise $325,000 by the time November’s midterms are decided so we can be ready to throw everything we have at the big issues facing the nation no matter what happens. Please help MoJo’s people-powered journalism with a donation today.

$400,000 to go!

payment methods

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