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DOJ changes leak investigation rules concerning news media

The Department of Justice on Friday unveiled new rules that make two major changes in how it will investigate reporters and news media while trying to track down government officials who leak classified information. 

"The Department of Justice is firmly committed to ensuring our nation’s security, and protecting the American people, while at the same time safeguarding the freedom of the press," said Attorney General Eric Holder.

"These revised guidelines will help ensure the proper balance is struck when pursuing investigations into unauthorized disclosures."  

Under the revised rules, news organizations will now normally be notified that the government is seeking records, which will allow the media the opportunity to fight the requests in court. 

And individual reporters will be subject to search warrants only when the reporter is the focus of a criminal investigation for conduct that is not connected to ordinary news-gathering activity. 

Two cases prompted the review of the DOJ rules:

  • The seizure of phone records from Associated Press reporters and editors by DOJ investigators looking into a leak of classified information that the CIA had foiled a plot to detonate a bomb on a plane from Yemen. The records seizure was revealed by the AP in May.
  • A search warrant targeting Fox News reporter James Rosen as a possible “co-conspirator” in violation of the Espionage Act in connection with an investigation into the alleged leak of national security information about North Korea by former State Department intelligence analyst Stephen Kim. Kim has been indicted in connection with the case and has pleaded not guilty; Rosen was never charged. 

Afterward, President Barack Obama ordered Attorney General Eric Holder to review the policy the Justice Department uses to obtain such material. 

If these policies had been in effect at the time, the Justice Department would not have taken the steps against the AP and Fox that led to widespread criticism.  "It's as clear an admission that we would never do this again as we're going to give," said a senior official, speaking with NBC News on condition of anonymity. 

The department will also issue an annual report disclosing the number of times it sought news media records. 

Here's a more detailed look at the changes: 

Under current DOJ rules, news organizations are told that the government is seeking information like phone records only when officials determine that giving notice "would not pose a substantial threat to the integrity of the investigation."  The new rules reverse that presumption and specify that notice will be given unless officials determine that it "would pose a clear and substantial threat to the integrity of the investigation."  

"The presumption will ensure notice in all but the most exceptional cases," according to a Justice Department summary of the new rules. 

The decision not to give notice to a news organization would have to be made by the attorney general, raising the level of review. 

When the attorney general determines that notice cannot be provided, it can be delayed for a maximum of 90 days -- an initial period of 45 days, with another 45 days if a determination is made that the threat to the investigation persisted. 

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"It is expected that only the rare case would present the attorney general with the requisite compelling reason to justify a delayed notification," the report said. 

The second major change involves the Privacy Protection Act, the law that prosecutors invoked in seeing records of Rosen, by calling him an aider or abettor in the alleged leak of intelligence involving North Korea.  An exception to that law allows the government to seek materials when someone is suspected of committing a criminal offense. 

Under the new rule, the government can use the suspect exception "only when the member of the news media is a focus of a criminal investigation for conduct not connected to ordinary news gathering activities."  

Using this authority would also require the sign-off of the attorney general.

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