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[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]

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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.

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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 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
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