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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WE'LL BE BLUNT

It is astonishingly hard keeping a newsroom afloat these days, and we need to raise $253,000 in online donations quickly, by October 7.

The short of it: Last year, we had to cut $1 million from our budget so we could have any chance of breaking even by the time our fiscal year ended in June. And despite a huge rally from so many of you leading up to the deadline, we still came up a bit short on the whole. We can’t let that happen again. We have no wiggle room to begin with, and now we have a hole to dig out of.

Readers also told us to just give it to you straight when we need to ask for your support, and seeing how matter-of-factly explaining our inner workings, our challenges and finances, can bring more of you in has been a real silver lining. So our online membership lead, Brian, lays it all out for you in his personal, insider account (that literally puts his skin in the game!) of how urgent things are right now.

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