[Federal Register Volume 79, Number 39 (Thursday, February 27, 2014)]
[Rules and Regulations]
[Pages 10989-10994]
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DEPARTMENT OF JUSTICE
Office of the Attorney General
28 CFR Parts 50 and 59
[Docket No. 145; AG Order No. 3420-2014]
Policy Regarding Obtaining Information From, or Records of,
Members of the News Media; and Regarding Questioning, Arresting, or
Charging Members of the News Media
AGENCY: Office of the Attorney General, Department of Justice.
ACTION: Final rule.
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SUMMARY: This rule amends the policy of the Department of Justice
regarding the use of subpoenas, certain court orders, and search
warrants, to obtain information from, or records of, members of the
news media. The rule also amends the Department's policy regarding
questioning, arresting, or charging members of the news media.
DATES: This rule is effective on February 27, 2014.
FOR FURTHER INFORMATION CONTACT: Monique Roth, Director, Office of
Enforcement Operations, Criminal Division, (202) 514-6809.
SUPPLEMENTARY INFORMATION:
Discussion
In May of 2013, the Department initiated a comprehensive evaluation
of its practices and policies regarding the use of subpoenas, court
orders, and search warrants to obtain information from, or records of,
members of the news media. As part of this process, the Department
convened a series of meetings to solicit input from a wide range of
news media stakeholders, First Amendment academics and advocates, and
Members of Congress. Based on this review, the Department issued a
report on July 12, 2013, announcing changes to the Department's
policies.
This final rule revises the existing provisions in the Department's
regulations at 28 CFR 50.10. The revisions are intended to ensure that,
in determining whether to seek information from, or records of, members
of the news media, the Department strikes the proper balance among
several vital interests: (1) Protecting national security, (2) ensuring
public safety, (3) promoting effective law enforcement and the fair
administration of justice, and (4) safeguarding the essential role of
the free press in fostering government accountability and an open
society.
The revisions also ensure more robust oversight by senior
Department officials; centralize the internal review and evaluation
process; set out specific standards for the use and handling of
information obtained from, or records of, members of the news media;
and extend the policies to cover the use of subpoenas, court orders
issued pursuant to 18 U.S.C. 2703(d) and 3123, and search warrants.
The changes to the policy also strengthen the presumption that
Department attorneys will negotiate with, and provide advance notice
to, affected members of the news media when investigators seek to
obtain from third parties communications records or
[[Page 10990]]
business records related to ordinary newsgathering activities.
A cross-reference to the new policy has been added to part 59,
pertaining to documentary materials held by third parties.
Regulatory Certifications
Administrative Procedure Act, 5 U.S.C. 553
Because, for purposes of the Administrative Procedure Act, this
regulation concerns general statements of policy, or rules of agency
organization, procedure, or practice, notice and comment and a delayed
effective date are not required. See 5 U.S.C. 553(b)(A).
Regulatory Flexibility Act
Because this final rule is not promulgated as a final rule under 5
U.S.C. 553 and was not required under that section to be published as a
proposed rule, the requirements for the preparation of a regulatory
flexibility analysis under 5 U.S.C. 604(a) do not apply. In any event,
the Attorney General, in accordance with 5 U.S.C. 605(b), has reviewed
this regulation and by approving it certifies that this regulation will
not have a significant economic impact on a substantial number of small
entities because it pertains to administrative matters affecting the
Department.
Executive Orders 12866 and 13563--Regulatory Planning and Review
This action has been drafted and reviewed in accordance with
Executive Order 12866, Regulatory Planning and Review, section 1(b),
Principles of Regulation. This rule is limited to agency organization,
management, or personnel matters as described by section 3(d)(3) of
Executive Order 12866 of September 30, 1993, and therefore is not a
``regulation'' as defined by that Executive Order. Accordingly, this
action has not been reviewed by the Office of Management and Budget.
Executive Order 12988--Civil Justice Reform
This regulation meets the applicable standards set forth in
sections 3(a) and 3(b)(2) of Executive Order 12988 of February 5, 1996.
Executive Order 13132--Federalism
This regulation will not have substantial direct effects on the
States, on the relationship between the national government and the
States, or on distribution of power and responsibilities among the
various levels of government. Therefore, in accordance with Executive
Order 13132 of August 4, 1999, this rule does not have sufficient
federalism implications to warrant the preparation of a federalism
assessment.
Unfunded Mandates Reform Act of 1995
This rule will not result in the expenditure by State, local, and
tribal governments, in the aggregate, or by the private sector, of $100
million or more in any one year, and it will not significantly or
uniquely affect small governments. Therefore, no actions were deemed
necessary under the provisions of the Unfunded Mandates Reform Act of
1995, Public Law 104-4.
Congressional Review Act
This action pertains to agency management and does not
substantially affect the rights or obligations of non-agency parties;
accordingly, this action is not a ``rule'' as that term is used by the
Congressional Review Act (Subtitle E of the Small Business Regulatory
Enforcement Fairness Act of 1996 (SBREFA)). Therefore, the reporting
requirement of 5 U.S.C. 801 does not apply.
List of Subjects
28 CFR Part 50
Administrative practice and procedure, Crime, News, Media,
Subpoena, Search warrants.
28 CFR Part 59
Administrative practice and procedure, Privacy, Search warrants.
Accordingly, for the reasons stated in the preamble, parts 50 and
59 of title 28 of the Code of Federal Regulations are amended as
follows:
PART 50--STATEMENTS OF POLICY
0
1. The authority citation for part 50 is revised to read as follows:
Authority: 5 U.S.C. 301; 18 U.S.C. 1162; 28 U.S.C. 509, 510,
516, and 519; 42 U.S.C. 1921 et seq., 1973c; and Pub. L. 107-273,
116 Stat. 1758, 1824.
0
2. Section 50.10 is revised to read as follows:
Sec. 50.10 Policy regarding obtaining information from, or records
of, members of the news media; and regarding questioning, arresting, or
charging members of the news media.
(a) Statement of principles. (1) Because freedom of the press can
be no broader than the freedom of members of the news media to
investigate and report the news, the Department's policy is intended to
provide protection to members of the news media from certain law
enforcement tools, whether criminal or civil, that might unreasonably
impair ordinary newsgathering activities. The policy is not intended to
extend special protections to members of the news media who are the
focus of criminal investigations for conduct not based on, or within
the scope of, ordinary newsgathering activities.
(2) In determining whether to seek information from, or records of,
members of the news media, the approach in every instance must be to
strike the proper balance among several vital interests: protecting
national security, ensuring public safety, promoting effective law
enforcement and the fair administration of justice, and safeguarding
the essential role of the free press in fostering government
accountability and an open society.
(3) The Department views the use of certain law enforcement tools,
including subpoenas, court orders issued pursuant to 18 U.S.C. 2703(d)
or 3123, and search warrants to seek information from, or records of,
non-consenting members of the news media as extraordinary measures, not
standard investigatory practices. Subpoenas or court orders issued
pursuant to 18 U.S.C. 2703(d) or 3123, in particular, may be used,
after authorization by the Attorney General, or by another senior
official in accordance with the exceptions set forth in paragraph
(c)(3) of this section, only to obtain information from, or records of,
members of the news media when the information sought is essential to a
successful investigation, prosecution, or litigation; after all
reasonable alternative attempts have been made to obtain the
information from alternative sources; and after negotiations with the
affected member of the news media have been pursued, unless the
Attorney General determines that, for compelling reasons, such
negotiations would pose a clear and substantial threat to the integrity
of the investigation, risk grave harm to national security, or present
an imminent risk of death or serious bodily harm.
(4) When the Attorney General has authorized the use of a subpoena,
court order issued pursuant to 18 U.S.C. 2703(d) or 3123, or warrant to
obtain from a third party communications records or business records of
a member of the news media, the affected member of the news media shall
be given reasonable and timely notice of the Attorney General's
determination before the use of the subpoena, court order, or warrant,
unless the Attorney General determines that, for compelling reasons,
such notice would pose a clear and substantial threat to the integrity
of the investigation, risk grave harm to national security, or present
an
[[Page 10991]]
imminent risk of death or serious bodily harm.
(b) Scope.--(1) Covered individuals and entities. (i) The policy
governs the use of certain law enforcement tools to obtain information
from, or records of, members of the news media.
(ii) The protections of the policy do not extend to any individual
or entity who is or is reasonably likely to be--
(A) A foreign power or agent of a foreign power, as those terms are
defined in section 101 of the Foreign Intelligence Surveillance Act of
1978 (50 U.S.C. 1801);
(B) A member or affiliate of a foreign terrorist organization
designated under section 219(a) of the Immigration and Nationality Act
(8 U.S.C. 1189(a));
(C) Designated as a Specially Designated Global Terrorist by the
Department of the Treasury under Executive Order No. 13224 of September
23, 2001 (66 FR 49079);
(D) A specially designated terrorist as that term is defined in 31
CFR 595.311 (or any successor thereto);
(E) A terrorist organization as that term is defined in section
212(a)(3)(B)(vi) of the Immigration and Nationality Act (8 U.S.C.
1182(a)(3)(B)(vi));
(F) Committing or attempting to commit a crime of terrorism, as
that offense is described in 18 U.S.C. 2331(5) or 2332b(g)(5);
(G) Committing or attempting the crime of providing material
support or resources, as that term is defined in 18 U.S.C. 2339A(b)(1),
to a terrorist organization; or
(H) Aiding, abetting, or conspiring in illegal activity with a
person or organization described in paragraphs (b)(1)(ii)(A) through
(G) of this section.
(2) Covered law enforcement tools and records. (i) The policy
governs the use by law enforcement authorities of subpoenas or, in
civil matters, other similar compulsory process such as a civil
investigative demand (collectively ``subpoenas'') to obtain information
from members of the news media, including documents, testimony, and
other materials; and the use by law enforcement authorities of
subpoenas, or court orders issued pursuant to 18 U.S.C. 2703(d)
(``2703(d) order'') or 18 U.S.C. 3123 (``3123 order''), to obtain from
third parties ``communications records'' or ``business records'' of
members of the news media.
(ii) The policy also governs applications for warrants to search
the premises or property of members of the news media, pursuant to
Federal Rule of Criminal Procedure 41; or to obtain from third-party
``communication service providers'' the communications records of
members of the news media, pursuant to 18 U.S.C. 2703(a) and (b).
(3) Definitions. (i)(A) ``Communications records'' include the
contents of electronic communications as well as source and destination
information associated with communications, such as email transaction
logs and local and long distance telephone connection records, stored
or transmitted by a third-party communication service provider with
which the member of the news media has a contractual relationship.
(B) Communications records do not include information described in
18 U.S.C. 2703(c)(2)(A), (B), (D), (E), and (F).
(ii) A ``communication service provider'' is a provider of an
electronic communication service or remote computing service as
defined, respectively, in 18 U.S.C. 2510(15) and 18 U.S.C. 2711(2).
(iii)(A) ``Business records'' include records of the activities,
including the financial transactions, of a member of the news media
related to the coverage, investigation, or reporting of news, which
records are generated or maintained by a third party with which the
member of the news media has a contractual relationship. Business
records are limited to those that could provide information about the
newsgathering techniques or sources of a member of the news media.
(B) Business records do not include records unrelated to ordinary
newsgathering activities, such as those related to the purely
commercial, financial, administrative, or technical, operations of a
news media entity.
(C) Business records do not include records that are created or
maintained either by the government or by a contractor on behalf of the
government.
(c) Issuing subpoenas to members of the news media, or using
subpoenas or court orders issued pursuant to 18 U.S.C. 2703(d) or 3123
to obtain from third parties communications records or business records
of a member of the news media. (1) Except as set forth in paragraph
(c)(3) of this section, members of the Department must obtain the
authorization of the Attorney General to issue a subpoena to a member
of the news media; or to use a subpoena, 2703(d) order, or 3123 order
to obtain from a third party communications records or business records
of a member of the news media.
(2) Requests for the authorization of the Attorney General for the
issuance of a subpoena to a member of the news media, or to use a
subpoena, 2703(d) order, or 3123 order to obtain communications records
or business records of a member of the news media, must personally be
endorsed by the United States Attorney or Assistant Attorney General
responsible for the matter.
(3) Exceptions to the Attorney General authorization requirement.
(i)(A) A United States Attorney or Assistant Attorney General
responsible for the matter may authorize the issuance of a subpoena to
a member of the news media (e.g., for documents, video or audio
recordings, testimony, or other materials) if the member of the news
media expressly agrees to provide the requested information in response
to a subpoena. This exception applies, but is not limited, to both
published and unpublished materials and aired and unaired recordings.
(B) In the case of an authorization under paragraph (c)(3)(i)(A) of
this section, the United States Attorney or Assistant Attorney General
responsible for the matter shall provide notice to the Director of the
Criminal Division's Office of Enforcement Operations within 10 business
days of the authorization of the issuance of the subpoena.
(ii) In light of the intent of the policy to protect freedom of the
press, ordinary newsgathering activities, and confidential news media
sources, authorization of the Attorney General will not be required of
members of the Department in the following circumstances:
(A) To issue subpoenas to news media entities for purely
commercial, financial, administrative, technical, or other information
unrelated to ordinary newsgathering activities; or for information or
records relating to personnel not involved in ordinary newsgathering
activities.
(B) To issue subpoenas to members of the news media for information
related to public comments, messages, or postings by readers, viewers,
customers, or subscribers, over which the member of the news media does
not exercise editorial control prior to publication.
(C) To use subpoenas to obtain information from, or to use
subpoenas, 2703(d) orders, or 3123 orders to obtain communications
records or business records of, members of the news media who may be
perpetrators or victims of, or witnesses to, crimes or other events,
when such status (as a perpetrator, victim, or witness) is not based
on, or within the scope of, ordinary newsgathering activities.
(iii) In the circumstances identified in paragraphs (c)(3)(ii)(A)
through (C) of this section, the United States Attorney or Assistant
Attorney General responsible for the matter must--
[[Page 10992]]
(A) Authorize the use of the subpoena or court order;
(B) Consult with the Criminal Division regarding appropriate review
and safeguarding protocols; and
(C) Provide a copy of the subpoena or court order to the Director
of the Office of Public Affairs and to the Director of the Criminal
Division's Office of Enforcement Operations within 10 business days of
the authorization.
(4) Considerations for the Attorney General in determining whether
to authorize the issuance of a subpoena to a member of the news media.
(i)(A) In criminal matters, there should be reasonable grounds to
believe, based on public information, or information from non-media
sources, that a crime has occurred, and that the information sought is
essential to a successful investigation or prosecution. The subpoena
should not be used to obtain peripheral, nonessential, or speculative
information.
(B) In civil matters, there should be reasonable grounds to
believe, based on public information or information from non-media
sources, that the information sought is essential to the successful
completion of the investigation or litigation in a case of substantial
importance. The subpoena should not be used to obtain peripheral,
nonessential, cumulative, or speculative information.
(ii) The government should have made all reasonable attempts to
obtain the information from alternative, non-media sources.
(iii)(A) The government should have pursued negotiations with the
affected member of the news media, unless the Attorney General
determines that, for compelling reasons, such negotiations would pose a
clear and substantial threat to the integrity of the investigation,
risk grave harm to national security, or present an imminent risk of
death or serious bodily harm. Where the nature of the investigation
permits, the government should have explained to the member of the news
media the government's needs in a particular investigation or
prosecution, as well as its willingness to address the concerns of the
member of the news media.
(B) The obligation to pursue negotiations with the affected member
of the news media, unless excused by the Attorney General, is not
intended to conflict with the requirement that members of the
Department secure authorization from the Attorney General to question a
member of the news media as required in paragraph (f)(1) of this
section. Accordingly, members of the Department do not need to secure
authorization from the Attorney General to pursue negotiations.
(iv) The proposed subpoena generally should be limited to the
verification of published information and to such surrounding
circumstances as relate to the accuracy of the published information.
(v) In investigations of unauthorized disclosures of national
defense information or of classified information, where the Director of
National Intelligence, after consultation with the relevant Department
or agency head(s), certifies to the Attorney General the significance
of the harm raised by the unauthorized disclosure and that the
information disclosed was properly classified and reaffirms the
intelligence community's continued support for the investigation and
prosecution, the Attorney General may authorize the Department, in such
investigations, to issue subpoenas to members of the news media. The
certification will be sought not more than 30 days prior to the
submission of the approval request to the Attorney General.
(vi) Requests should be treated with care to avoid interference
with ordinary newsgathering activities or claims of harassment.
(vii) The proposed subpoena should be narrowly drawn. It should be
directed at material and relevant information regarding a limited
subject matter, should cover a reasonably limited period of time,
should avoid requiring production of a large volume of material, and
should give reasonable and timely notice of the demand.
(5) Considerations for the Attorney General in determining whether
to authorize the use of a subpoena, 2703(d) order, or 3123 order to
obtain from third parties the communications records or business
records of a member of the news media. (i)(A) In criminal matters,
there should be reasonable grounds to believe, based on public
information, or information from non-media sources, that a crime has
been committed, and that the information sought is essential to the
successful investigation or prosecution of that crime. The subpoena or
court order should not be used to obtain peripheral, nonessential, or
speculative information.
(B) In civil matters, there should be reasonable grounds to
believe, based on public information, or information from non-media
sources, that the information sought is essential to the successful
completion of the investigation or litigation in a case of substantial
importance. The subpoena should not be used to obtain peripheral,
nonessential, cumulative, or speculative information.
(ii) The use of a subpoena or court order to obtain from a third
party communications records or business records of a member of the
news media should be pursued only after the government has made all
reasonable attempts to obtain the information from alternative sources.
(iii)(A) The government should have pursued negotiations with the
affected member of the news media, unless the Attorney General
determines that, for compelling reasons, such negotiations would pose a
clear and substantial threat to the integrity of the investigation,
risk grave harm to national security, or present an imminent risk of
death or serious bodily harm.
(B) The obligation to pursue negotiations with the affected member
of the news media, unless excused by the Attorney General, is not
intended to conflict with the requirement that members of the
Department secure authorization from the Attorney General to question a
member of the news media as set forth in paragraph (f)(1) of this
section. Accordingly, members of the Department do not need to secure
authorization from the Attorney General to pursue negotiations.
(iv) In investigations of unauthorized disclosures of national
defense information or of classified information, where the Director of
National Intelligence, after consultation with the relevant Department
or agency head(s), certifies to the Attorney General the significance
of the harm raised by the unauthorized disclosure and that the
information disclosed was properly classified and reaffirms the
intelligence community's continued support for the investigation and
prosecution, the Attorney General may authorize the Department, in such
investigations, to use subpoenas or court orders issued pursuant to 18
U.S.C. 2703(d) or 3123 to obtain communications records or business
records of a member of the news media. The certification will be sought
not more than 30 days prior to the submission of the approval request
to the Attorney General.
(v) The proposed subpoena or court order should be narrowly drawn.
It should be directed at material and relevant information regarding a
limited subject matter, should cover a reasonably limited period of
time, and should avoid requiring production of a large volume of
material.
(vi) If appropriate, investigators should propose to use search
protocols designed to minimize intrusion into potentially protected
materials or
[[Page 10993]]
newsgathering activities unrelated to the investigation, including but
not limited to keyword searches (for electronic searches) and filter
teams (reviewing teams separate from the prosecution and investigative
teams).
(d) Applying for warrants to search the premises, property, or
communications records of members of the news media. (1) Except as set
forth in paragraph (d)(4) of this section, members of the Department
must obtain the authorization of the Attorney General to apply for a
warrant to search the premises, property, or communications records of
a member of the news media.
(2) All requests for authorization of the Attorney General to apply
for a warrant to search the premises, property, or communications
records of a member of the news media must personally be endorsed by
the United States Attorney or Assistant Attorney General responsible
for the matter.
(3) In determining whether to authorize an application for a
warrant to search the premises, property, or contents of communications
records of a member of the news media, the Attorney General should take
into account the considerations identified in paragraph (c)(5) of this
section.
(4) Members of the Department may apply for a warrant to obtain
work product materials or other documentary materials of a member of
the news media pursuant to the ``suspect exception'' of the Privacy
Protection Act (``PPA suspect exception''), 42 U.S.C. 2000aa(a)(1) and
(b)(1), only when the member of the news media is a focus of a criminal
investigation for conduct not based on, or within the scope of,
ordinary newsgathering activities. In such instances, members of the
Department must secure authorization from a Deputy Assistant Attorney
General for the Criminal Division.
(5) Members of the Department should not be authorized to apply for
a warrant to obtain work product materials or other documentary
materials of a member of the news media under the PPA suspect
exception, 42 U.S.C. 2000aa(a)(1) & (b)(1), if the sole purpose is to
further the investigation of a person other than the member of the news
media.
(6) A Deputy Assistant Attorney General for the Criminal Division
may authorize, under an applicable PPA exception, an application for a
warrant to search the premises, property, or communications records of
an individual other than a member of the news media, but who is
reasonably believed to have ``a purpose to disseminate to the public a
newspaper, book, broadcast, or other similar form of public
communication.'' 42 U.S.C. 2000aa(a) and (b).
(7) In executing a warrant authorized by the Attorney General or by
a Deputy Assistant Attorney General for the Criminal Division
investigators should use search protocols designed to minimize
intrusion into potentially protected materials or newsgathering
activities unrelated to the investigation, including but not limited to
keyword searches (for electronic searches) and filter teams (reviewing
teams separate from the prosecution and investigative teams).
(e) Notice to affected member of the news media. (1)(i) When the
Attorney General has authorized the use of a subpoena, court order, or
warrant to obtain from a third party communications records or business
records of a member of the news media, the affected member of the news
media shall be given reasonable and timely notice of the Attorney
General's determination before the use of the subpoena, court order, or
warrant, unless the Attorney General determines that, for compelling
reasons, such notice would pose a clear and substantial threat to the
integrity of the investigation, risk grave harm to national security,
or present an imminent risk of death or serious bodily harm.
(ii) The mere possibility that notice to the affected member of the
news media, and potential judicial review, might delay the
investigation is not, on its own, a compelling reason to delay notice.
(2) When the Attorney General has authorized the use of a subpoena,
court order, or warrant to obtain communications records or business
records of a member of the news media, and the affected member of the
news media has not been given notice of the Attorney General's
determination before the use of the subpoena, court order, or warrant,
the United States Attorney or Assistant Attorney General responsible
for the matter shall provide to the affected member of the news media
notice of the order or warrant as soon as it is determined that such
notice will no longer pose a clear and substantial threat to the
integrity of the investigation, risk grave harm to national security,
or present an imminent risk of death or serious bodily harm. In any
event, such notice shall occur within 45 days of the government's
receipt of any return made pursuant to the subpoena, court order, or
warrant, except that the Attorney General may authorize delay of notice
for an additional 45 days if he or she determines that, for compelling
reasons, such notice would pose a clear and substantial threat to the
integrity of the investigation, risk grave harm to national security,
or present an imminent risk of death or serious bodily harm. No further
delays may be sought beyond the 90-day period.
(3) The United States Attorney or Assistant Attorney General
responsible for the matter shall provide to the Director of the Office
of Public Affairs and to the Director of the Criminal Division's Office
of Enforcement Operations a copy of any notice to be provided to a
member of the news media whose communications records or business
records were sought or obtained at least 10 business days before such
notice is provided to the affected member of the news media, and
immediately after such notice is, in fact, provided to the affected
member of the news media.
(f) Questioning members of the news media about, arresting members
of the news media for, or charging members of the news media with,
criminal conduct they are suspected of having committed in the course
of, or arising out of, the coverage or investigation of news, or while
engaged in the performance of duties undertaken as members of the news
media. (1) No member of the Department shall subject a member of the
news media to questioning as to any offense that he or she is suspected
of having committed in the course of, or arising out of, the coverage
or investigation of news, or while engaged in the performance of duties
undertaken as a member of the news media, without notice to the
Director of the Office of Public Affairs and the express authorization
of the Attorney General. The government need not view the member of the
news media as a subject or target of an investigation, or have the
intent to prosecute the member of the news media, to trigger the
requirement that the Attorney General must authorize such questioning.
(2) No member of the Department shall seek a warrant for an arrest,
or conduct an arrest, of a member of the news media for any offense
that he or she is suspected of having committed in the course of, or
arising out of, the coverage or investigation of news, or while engaged
in the performance of duties undertaken as a member of the news media,
without notice to the Director of the Office of Public Affairs and the
express authorization of the Attorney General.
(3) No member of the Department shall present information to a
grand jury seeking a bill of indictment, or file an information,
against a member of the
[[Page 10994]]
news media for any offense that he or she is suspected of having
committed in the course of, or arising out of, the coverage or
investigation of news, or while engaged in the performance of duties
undertaken as a member of the news media, without notice to the
Director of the Office of Public Affairs and the express authorization
of the Attorney General.
(4) In requesting the Attorney General's authorization to question,
to arrest or to seek an arrest warrant for, or to present information
to a grand jury seeking an indictment or to file an information
against, a member of the news media for an offense that he or she is
suspected of having committed during the course of, or arising out of,
the coverage or investigation of news, or while engaged in the
performance of duties undertaken as a member of the news media, a
member of the Department shall state all facts necessary for a
determination by the Attorney General.
(g) Exigent circumstances. (1) A Deputy Assistant Attorney General
for the Criminal Division may authorize the use of a subpoena or court
order, as described in paragraph (c) of this section, or the
questioning, arrest, or charging of a member of the news media, as
described in paragraph (f) of this section, if he or she determines
that the exigent use of such law enforcement tool or technique is
necessary to prevent or mitigate an act of terrorism; other acts that
are reasonably likely to cause significant and articulable harm to
national security; death; kidnapping; substantial bodily harm; conduct
that constitutes a specified offense against a minor (for example, as
those terms are defined in section 111 of the Adam Walsh Child
Protection and Safety Act of 2006, 42 U.S.C. 16911), or an attempt or
conspiracy to commit such a criminal offense; or incapacitation or
destruction of critical infrastructure (for example, as defined in
section 1016(e) of the USA PATRIOT Act, 42 U.S.C. 5195c(e)).
(2) A Deputy Assistant Attorney General for the Criminal Division
may authorize an application for a warrant, as described in paragraph
(d) of this section, if there is reason to believe that the immediate
seizure of the materials at issue is necessary to prevent the death of,
or serious bodily injury to, a human being, as provided in 42 U.S.C.
2000aa(a)(2) and (b)(2).
(3) Within 10 business days of a Deputy Assistant Attorney General
for the Criminal Division approving a request under paragraph (g) of
this section, the United States Attorney or Assistant Attorney General
responsible for the matter shall provide to the Attorney General and to
the Director of the Office of Public Affairs a statement containing the
information that would have been given in requesting prior
authorization.
(h) Failure to comply with policy. Failure to obtain the prior
approval of the Attorney General, as required by this policy, may
constitute grounds for an administrative reprimand or other appropriate
disciplinary action.
(i) General provision. This policy is not intended to, and does
not, create any right or benefit, substantive or procedural,
enforceable at law or in equity by any party against the United States,
its departments, agencies, or entities, its officers, employees, or
agents, or any other person.
PART 59--GUIDELINES ON METHODS OF OBTAINING DOCUMENTARY MATERIALS
HELD BY THIRD PARTIES
0
3. The authority citation for part 59 continues to read as follows:
Authority: Sec. 201, Pub. L. 96-440, 94 Stat. 1879 (42 U.S.C.
2000aa-11).
0
4. Section 59.3 is revised by adding a new sentence at the end of
paragraph (d) to read as follows:
Sec. 59.3 Applicability.
* * * * *
(d) * * * For the use of a warrant to obtain information from, or
records of, members of the news media, see the Department's statement
of policy set forth in Sec. 50.10 of this chapter.
Dated: February 21, 2013.
Eric H. Holder, Jr.,
Attorney General.
[FR Doc. 2014-04239 Filed 2-26-14; 8:45 am]
BILLING CODE 4410-14-P
