[Federal Register Volume 87, Number 212 (Thursday, November 3, 2022)]
[Rules and Regulations]
[Pages 66239-66244]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2022-23679]


=======================================================================
-----------------------------------------------------------------------

DEPARTMENT OF JUSTICE

28 CFR Part 50

[Docket No. OAG 179; AG Order No. 5524-2022]


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.

-----------------------------------------------------------------------

SUMMARY: This rule amends the regulations setting forth the policy of 
the Department of Justice regarding the use of compulsory legal 
process, including subpoenas, search warrants, and certain court orders 
for the purpose of obtaining information from or records of members of 
the news media. The rule

[[Page 66240]]

also amends the Department's regulations establishing its policy 
regarding questioning, arresting, or charging members of the news 
media.

DATES: This rule is effective on November 3, 2022.

FOR FURTHER INFORMATION CONTACT: Ashley Dugger, Acting Director, Office 
of Enforcement Operations, Criminal Division, (202) 514-6809.

SUPPLEMENTARY INFORMATION: 

Discussion

    On July 19, 2021, the Attorney General issued a memorandum revising 
the Department's policy regarding the use of compulsory legal process 
for the purpose of obtaining information from or records of members of 
the news media. The memorandum asked the Deputy Attorney General to 
undertake a review process to further explain, develop, and codify in 
regulations the protections provided for in the memorandum. After the 
conclusion of that review and consultation with relevant internal and 
external stakeholders, the Attorney General is issuing this final rule 
to revise the existing provisions in the Department's regulations at 28 
CFR 50.10.
    The revisions replace the regulations' prior balancing test and 
codify the Attorney General's July 2021 directive that the Department 
of Justice will no longer use compulsory legal process for the purpose 
of obtaining information from or records of members of the news media 
acting within the scope of newsgathering, except in limited 
circumstances. Other revisions are intended to clarify the scope of the 
policy, specify the approvals required in the circumstances in which 
compulsory legal process is allowed, tighten procedures for the review 
and safeguarding of information, and fill gaps in the previous 
regulations.

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), (d).

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 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, Media, News, Search 
warrants, Subpoena.

    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) A free and independent press is 
vital to the functioning of our democracy. 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 and actions, whether criminal or civil, that might 
unreasonably impair newsgathering. The policy is not intended to shield 
from accountability members of the news media who are subjects or 
targets of a criminal investigation for conduct outside the scope of 
newsgathering.
    (2) The Department recognizes the important national interest in 
protecting journalists from compelled disclosure of information 
revealing their sources, sources they need to apprise the American 
people of the workings of their Government. For this reason, with the 
exception of certain circumstances set out in this section, the 
Department of Justice will not use compulsory legal process for the 
purpose of obtaining information from or records of members of the news 
media acting within the scope of newsgathering.
    (3) In determining whether to seek, when permitted by this policy, 
information from or records of members of the news media, the 
Department must consider several vital interests: protecting national 
security, ensuring public safety, promoting effective law enforcement 
and the fair administration

[[Page 66241]]

of justice, and safeguarding the essential role of a free press in 
fostering Government accountability and an open society, including by 
protecting members of the news media from compelled disclosure of 
information revealing their sources. These interests have long informed 
the Department's view that the use of compulsory legal process to seek 
information from or records of non-consenting members of the news media 
constitutes an extraordinary measure, not a standard investigatory 
practice.
    (b) Scope and definitions--(1) Covered persons and entities. The 
policy in this section governs the use of certain law enforcement tools 
and actions, whether criminal or civil, to obtain information from or 
records of members of the news media.
    (2) Definitions. (i) Compulsory legal process consists of 
subpoenas, search warrants, court orders issued pursuant to 18 U.S.C. 
2703(d) and 3123, interception orders issued pursuant to 18 U.S.C. 
2518, civil investigative demands, and mutual legal assistance treaty 
requests--regardless of whether issued to members of the news media 
directly, to their publishers or employers, or to others, including 
third-party service providers of any of the forgoing, for the purpose 
of obtaining information from or records of members of the news media, 
and regardless of whether the compulsory legal process seeks testimony, 
physical or electronic documents, telephone toll or other 
communications records, metadata, or digital content.
    (ii) Newsgathering is the process by which a member of the news 
media collects, pursues, or obtains information or records for purposes 
of producing content intended for public dissemination.
    (A) Newsgathering includes the mere receipt, possession, or 
publication by a member of the news media of Government information, 
including classified information, as well as establishing a means of 
receiving such information, including from an anonymous or confidential 
source.
    (B) Except as provided in paragraph (b)(2)(ii)(A) of this section, 
newsgathering does not include criminal acts committed in the course of 
obtaining information or using information, such as: breaking and 
entering; theft; unlawfully accessing a computer or computer system; 
unlawful surveillance or wiretapping; bribery; extortion; fraud; 
insider trading; or aiding or abetting or conspiring to engage in such 
criminal activities, with the requisite criminal intent.
    (3) Exclusions. (i) The protections of the policy in this section 
do not extend to any person or entity where there is a reasonable 
ground to believe the person 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, 3 CFR, 2001 Comp., p. 786;
    (D) A specially designated terrorist as that term is defined in 31 
CFR 595.311;
    (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 to commit the crimes of providing 
material support or resources to terrorists or designated foreign 
terrorist organizations, providing or collecting funds to finance acts 
of terrorism, or receiving military-type training from a foreign 
terrorist organization, as those offenses are defined in 18 U.S.C. 
2339A, 2339B, 2339C, and 2339D; or
    (H) Aiding, abetting, or conspiring in illegal activity with a 
person or organization described in paragraphs (b)(3)(i)(A) through (G) 
of this section.
    (ii) The determination that an exclusion in paragraph (b)(3)(i) of 
this section applies must be made by the Assistant Attorney General for 
National Security.
    (c) Compulsory legal process for the purpose of obtaining 
information from or records of a member of the news media acting within 
the scope of newsgathering. Compulsory legal process for the purpose of 
obtaining information from or records of a member of the news media 
acting within the scope of newsgathering is prohibited except under the 
circumstances set forth in paragraphs (c)(1) through (3) of this 
section. (Note that the prohibition in this paragraph (c) on using 
compulsory legal process applies when a member of the news media has, 
in the course of newsgathering, only received, possessed, or published 
government information, including classified information, or has 
established a means of receiving such information, including from an 
anonymous or confidential source.) The Department may only use 
compulsory legal process for the purpose of obtaining information from 
or records of a member of the news media acting within the scope of 
newsgathering, as follows:
    (1) To authenticate for evidentiary purposes information or records 
that have already been published, in which case the authorization of a 
Deputy Assistant Attorney General for the Criminal Division is 
required;
    (2) To obtain information or records after a member of the news 
media agrees to provide or consents to the provision of the requested 
records or information in response to the proposed compulsory legal 
process, in which case authorization as described in paragraph (i) of 
this section is required; or
    (3) When necessary to prevent an imminent or concrete risk of death 
or serious bodily harm, including terrorist acts, kidnappings, 
specified offenses against a minor (as defined in 34 U.S.C. 20911(7)), 
or incapacitation or destruction of critical infrastructure (as defined 
in 42 U.S.C. 5195c(e)), in which case the authorization of the Attorney 
General is required.
    (d) Compulsory legal process for the purpose of obtaining 
information from or records of a member of the news media not acting 
within the scope of newsgathering. (1) The Department may only use 
compulsory legal process for the purpose of obtaining information from 
or records of a member of the news media who is not acting within the 
scope of newsgathering:
    (i) When the member of the news media is the subject or target of 
an investigation and suspected of having committed an offense;
    (ii) To obtain information or records of a non-member of the news 
media, when the non-member is the subject or target of an investigation 
and the information or records are in a physical space, device, or 
account shared with a member of the news media;
    (iii) To obtain purely commercial, financial, administrative, 
technical, or other information or records unrelated to newsgathering; 
or for information or records relating to personnel not involved in 
newsgathering;
    (iv) To obtain information or records related to public comments, 
messages, or postings by readers, viewers, customers, or subscribers, 
over which a member of the news media does not exercise editorial 
control prior to publication;
    (v) To obtain information or records of a member of the news media 
who may be a victim of or witness to crimes or

[[Page 66242]]

other events, or whose premises may be the scene of a crime, when such 
status (as a victim or witness or crime scene) is not based on or 
within the scope of newsgathering; or
    (vi) To obtain only subscriber and other information described in 
18 U.S.C. 2703(c)(2)(A), (B), (D), (E), and (F).
    (2) Compulsory legal process under paragraph (d)(1) of this section 
requires the authorization of a Deputy Assistant Attorney General for 
the Criminal Division, except that:
    (i) To obtain information or records after a member of the news 
media agrees to provide or consents to the provision of the requested 
records or information in response to the proposed compulsory legal 
process, such compulsory legal process requires authorization as 
described in paragraph (i) of this section governing voluntary 
questioning and compulsory legal process following consent by a member 
of the news media; and
    (ii) To seek a search warrant for the premises of a news media 
entity requires authorization by the Attorney General.
    (e) Matters where there is a close or novel question as to the 
person's or entity's status as a member of the news media or whether 
the member of the news media is acting within the scope of 
newsgathering. (1) When there is a close or novel question as to the 
person's or entity's status as a member of the news media, the 
determination of such status must be approved by the Assistant Attorney 
General for the Criminal Division.
    (2) When there is a close or novel question as to whether the 
member of the news media is acting within the scope of newsgathering, 
the determination of such status must be approved by the Assistant 
Attorney General for the Criminal Division. When the Assistant Attorney 
General finds that there is genuine uncertainty as to whether the 
member of the news media is acting within the scope of newsgathering, 
the determination of such status must be approved by the Attorney 
General.
    (f) Compelled testimony. (1) Except as provided in paragraph (f)(2) 
of this section, members of the Department must obtain the 
authorization of the Deputy Attorney General when seeking to compel 
grand jury or trial testimony otherwise permitted by this section from 
any member of the news media.
    (2) When the compelled testimony under paragraph (f)(1) of this 
section has no nexus to the person's or entity's activities as a member 
of the news media, members of the Department must obtain the 
authorization of a Deputy Assistant Attorney General for the Criminal 
Division and provide prior notice to the Deputy Attorney General.
    (3) Such authorization may only be granted when all other 
requirements of this policy regarding compulsory legal process have 
been satisfied.
    (g) Exhaustion. (1) Except as provided in paragraph (g)(2) of this 
section, the official authorizing the compulsory legal process must 
find the following exhaustion conditions are met:
    (i) The Government has exhausted all reasonable avenues to obtain 
the information from alternative, non-news-media sources.
    (ii) The Government has pursued negotiations with the member of the 
news media in an attempt to secure the member of the news media's 
consent to the production of the information or records to be sought 
through compulsory legal process, unless the authorizing official 
determines that, for compelling reasons, such negotiations would pose a 
clear and substantial threat to the integrity of the investigation or 
pose the risks described in paragraph (c)(3) of this section. Where the 
nature of the investigation permits, the Government must have explained 
to the member of the news media the Government's need for the 
information sought in a particular investigation or prosecution, as 
well as its willingness or ability to address the concerns of the 
member of the news media.
    (iii) The proposed compulsory legal process is narrowly drawn. It 
must be directed at material and relevant information regarding a 
limited subject matter, avoid interference with unrelated 
newsgathering, cover a reasonably limited period of time, avoid 
requiring production of a large volume of material, and give reasonable 
and timely notice of the demand as required by paragraph (j) of this 
section.
    (2) When the process is sought pursuant to paragraph (d)(1), (i), 
or (l) of this section, the authorizing official is not required to 
find that the exhaustion conditions in paragraphs (g)(1)(i) and (ii) of 
this section have been satisfied, but should consider requiring those 
conditions as appropriate.
    (h) Standards for authorizing compulsory legal process. (1) In all 
matters covered by this section, the official authorizing the 
compulsory legal process must take into account the principles set 
forth in paragraph (a) of this section.
    (2) Except as provided in paragraph (h)(3) of this section, when 
the member of the news media is not the subject or target of an 
investigation and suspected of having committed an offense, the 
official authorizing the compulsory legal process must take into 
account the following considerations:
    (i) In criminal matters, there must be reasonable grounds to 
believe, based on public information or information from non-news-media 
sources, that a crime has occurred, and that the information sought is 
essential to a successful investigation or prosecution. The compulsory 
legal process may not be used to obtain peripheral, nonessential, or 
speculative information.
    (ii) In civil matters, there must be reasonable grounds to believe, 
based on public information or information from non-news-media sources, 
that the information sought is essential to the successful completion 
of the investigation or litigation in a case of substantial importance. 
The compulsory legal process may not be used to obtain peripheral, 
nonessential, cumulative, or speculative information.
    (3) When paragraph (h)(2) of this section would otherwise apply, 
but the compulsory legal process is sought pursuant to paragraph (i) or 
(l) of this section, the authorizing official is not required to, but 
should, take into account whether the information sought is essential 
to a successful investigation, prosecution, or litigation as described 
in paragraphs (h)(2)(i) and (ii) of this section.
    (4) When the member of the news media is the subject or target of 
an investigation and suspected of having committed an offense, before 
authorizing compulsory legal process, the authorizing official is not 
required to, but should, take into account the considerations set forth 
in paragraphs (h)(2)(i) and (ii) of this section as appropriate.
    (i) Voluntary questioning and compulsory legal process following 
consent by a member of the news media. (1) When the member of the news 
media is not the subject or target of an investigation and suspected of 
having committed an offense, authorization by a United States Attorney 
or Assistant Attorney General responsible for the matter must be 
obtained in order to question a member of the news media on a voluntary 
basis, or to use compulsory legal process if the member of the news 
media agrees to provide or consents to the provision of the requested 
records or information in response to the proposed process. When there 
is any nexus to the person's activities as a member of the news media, 
such authorization must be preceded by consultation with the Criminal 
Division.
    (2) When the member of the news media is the subject or target of 
an

[[Page 66243]]

investigation and suspected of having committed an offense, 
authorization by a Deputy Assistant Attorney General for the Criminal 
Division must be obtained in order to question a member of the news 
media on a voluntary basis, or to use compulsory legal process if the 
member of the news media agrees to provide or consents to the provision 
of the requested records or information in response to the proposed 
process.
    (j) Notice of compulsory legal process to the affected member of 
the news media. (1) Members of the Department must provide notice to 
the affected member of the news media prior to the execution of 
authorized compulsory legal process under paragraph (c) of this section 
unless the authorizing official determines that, for compelling 
reasons, such notice would pose the risks described in paragraph (c)(3) 
of this section.
    (2) Members of the Department must provide notice prior to the 
execution of compulsory legal process authorized under paragraphs 
(d)(1)(ii) through (vi) of this section to a member of the news media 
that is not the subject or target of an investigation and suspected of 
having committed an offense, unless the authorizing official determines 
that, for compelling reasons, such notice would pose a clear and 
substantial threat to the integrity of the investigation or would pose 
the risks described in paragraph (c)(3) of this section and so informs 
the Deputy Attorney General in advance.
    (3) If the member of the news media has not been given notice under 
paragraph (j)(1) or (2) of this section, the United States Attorney or 
Assistant Attorney General responsible for the matter must provide 
notice to the member of the news media as soon as it is determined that 
such notice would no longer pose the concerns described in paragraph 
(j)(1) or (2) of this section, as applicable.
    (4) In any event, such notice must be given to the affected member 
of the news media within 45 days of the Government's receipt of a 
complete return made pursuant to all forms of compulsory legal process 
included in the same authorizing official's authorization under 
paragraph (c) or (d)(1)(ii) through (vi) of this section, except that 
the authorizing official may authorize delay of notice for one 
additional 45-day period if the official determines that, for 
compelling reasons, such notice continues to pose the same concerns 
described in paragraph (j)(1) or (2) of this section, as applicable.
    (5) Members of the Department are not required to provide notice to 
the affected member of the news media of compulsory legal process that 
was authorized under paragraph (d)(1)(i) of this section if the 
affected member of the news media is the subject or target of an 
investigation and suspected of having committed an offense.
    (i) The authorizing official may nevertheless direct that notice be 
provided to the affected member of the news media.
    (ii) If the authorizing official does not direct that such notice 
be provided, the official must so inform the Deputy Attorney General, 
and members of the Department who are responsible for the matter must 
provide the authorizing official with an update every 90 days regarding 
the status of the investigation. That update must include an assessment 
of any harm to the investigation that would be caused by providing 
notice to the member of the news media. The authorizing official will 
consider such update in determining whether to direct that notice be 
provided.
    (6) Notice under the policy in this section may be given to the 
affected member of the news media or a current employer of that member 
if that employer is also a member of the news media.
    (7) A copy of any notice to be provided to a member of the news 
media shall be provided to the Director of the Office of Public Affairs 
and to the Director of the Criminal Division's Office of Enforcement 
Operations at least 10 business days before such notice is provided, 
and immediately after such notice is provided to the member of the news 
media.
    (k) Non-disclosure orders. (1) In seeking authorization to use 
compulsory legal process to obtain information from or the records of a 
member of the news media, members of the Department must indicate 
whether they intend to seek an order directing the recipient of the 
compulsory legal process not to disclose the existence of the 
compulsory legal process to any other person or entity and shall 
articulate the need for such non-disclosure order.
    (2) An application for a non-disclosure order sought in connection 
with compulsory legal process under paragraph (c) of this section may 
only be authorized if the authorizing official determines that, for 
compelling reasons, disclosure would pose the risks described in 
paragraph (c)(3) of this section and the application otherwise complies 
with applicable statutory standards and Department policies.
    (3) An application for a non-disclosure order sought in connection 
with compulsory legal process under paragraphs (d)(1)(ii) through (vi) 
of this section regarding a member of the news media that is not the 
subject or target of an investigation and suspected of having committed 
an offense may only be authorized if the authorizing official 
determines that, for compelling reasons, disclosure would pose a clear 
and substantial threat to the integrity of the investigation or would 
pose the risks described in paragraph (c)(3) of this section and the 
application otherwise complies with applicable statutory standards and 
Department policies.
    (4) An application for a non-disclosure order sought in connection 
with compulsory legal process under paragraph (d)(1)(i) of this section 
regarding a member of the news media that is a subject or target of an 
investigation and suspected of having committed an offense may be 
authorized if the application otherwise complies with applicable 
statutory standards and Department policies.
    (5) Members of the Department must move to vacate any non-
disclosure order when notice of compulsory legal process to the 
affected member of media is required (after any extensions permitted) 
by paragraph (j) of this section.
    (l) Exigent circumstances involving risk of death or serious bodily 
harm. (1) A Deputy Assistant Attorney General for the Criminal Division 
may authorize the use of compulsory legal process that would otherwise 
require authorization from the Attorney General or the Deputy Attorney 
General if the Deputy Assistant Attorney General for the Criminal 
Division determines that:
    (i) The exigent use of such compulsory legal process is necessary 
to prevent the risks described in paragraph (c)(3) of this section; and
    (ii) Those exigent circumstances require the use of such compulsory 
legal process before the authorization of the Attorney General or the 
Deputy Attorney General can, with due diligence, be obtained.
    (2) In authorizing the exigent use of compulsory legal process, a 
Deputy Assistant Attorney General for the Criminal Division should take 
into account the principles set forth in paragraph (a) of this section; 
ensure that the proposed process is narrowly tailored to retrieve 
information or records required to prevent or mitigate the associated 
imminent risk; and require members of the Department to comply with the 
safeguarding protocols described in paragraph (p) of this section.
    (3) As soon as possible after the approval by a Deputy Assistant 
Attorney General for the Criminal Division of a request under paragraph 
(l)(1) of this section, the Deputy Assistant Attorney General must 
provide notice to the

[[Page 66244]]

designated authorizing official, the Deputy Attorney General, and the 
Director of the Office of Public Affairs. Within 10 business days of 
the authorization under paragraph (l)(1) of this section, the United 
States Attorney or Assistant Attorney General responsible for the 
matter shall provide a statement to the designated authorizing official 
containing the information that would have been provided in a request 
for prior authorization.
    (m) Arresting or charging a member of the news media. (1) Except as 
provided in paragraph (m)(2) of this section or in circumstances in 
which prior authorization is not possible, members of the Department 
must obtain the authorization of the Deputy Attorney General to seek a 
warrant for an arrest, conduct an arrest, present information to a 
grand jury seeking a bill of indictment, or file an information against 
a member of the news media.
    (2) Except in circumstances in which prior authorization is not 
possible, when the arrest or charging of a member of the news media 
under paragraph (m)(1) of this section has no nexus to the person's or 
entity's activities as a member of the news media, members of the 
Department must obtain the authorization of a Deputy Assistant Attorney 
General for the Criminal Division and provide prior notice to the 
Deputy Attorney General.
    (3) When prior authorization was not possible, the member of the 
Department must ensure that the designated authorizing official is 
notified as soon as possible.
    (n) Applications for authorizations under this section. (1) 
Whenever any authorization is required under this section, the 
application must be personally approved in writing by the United States 
Attorney or Assistant Attorney General responsible for the matter.
    (2) Whenever the authorizing official under this section is the 
Attorney General or the Deputy Attorney General, the application must 
also be personally approved in a memorandum by the Assistant Attorney 
General for the Criminal Division.
    (3) The member of the Department requesting authorization must 
provide all facts and applicable legal authority necessary for the 
authorizing official to make the necessary determinations, as well as 
copies of the proposed compulsory legal process and any other related 
filings.
    (4) Whenever an application for any authorization is made to the 
Attorney General or the Deputy Attorney General under this section, the 
application must also be provided to the Director of the Office of 
Public Affairs for consultation.
    (o) Filter protocols. (1) In conjunction with the use of compulsory 
legal process, the use of filter protocols, including but not limited 
to keyword searches and filter teams, may be necessary to minimize the 
potential intrusion into newsgathering-related materials that are 
unrelated to the conduct under investigation.
    (2) While the use of filter protocols should be considered in all 
matters involving a member of the news media, the use of such protocols 
must be balanced against the need for prosecutorial flexibility and the 
recognition that investigations evolve, and should be tailored to the 
facts of each investigation.
    (3) Unless compulsory legal process is sought pursuant to paragraph 
(i) or (l) of this section, members of the Department must use filter 
protocols when the compulsory legal process relates to a member of the 
news media acting within the scope of newsgathering or the compulsory 
legal process could potentially encompass newsgathering-related 
materials that are unrelated to the conduct under investigation. The 
Attorney General or the Deputy Attorney General may waive the use of 
filter protocols only upon an express finding that there is a de 
minimis risk that newsgathering-related materials that are unrelated to 
the conduct under investigation would be obtained pursuant to the 
compulsory legal process and that any filter protocol would pose a 
substantial and unwarranted investigative burden.
    (4) Members of the Department should consult the Justice Manual for 
guidance regarding the use of filter protocols to protect 
newsgathering-related materials that are unrelated to the conduct under 
investigation.
    (p) Safeguarding. Any information or records that might include 
newsgathering-related materials obtained from a member of the news 
media or from third parties pursuant to the policy in this section must 
be closely held so as to prevent disclosure of the information to 
unauthorized persons or for improper purposes. Members of the 
Department must consult the Justice Manual for specific guidance 
regarding the safeguarding of information or records obtained from a 
member of the news media or from third parties pursuant to this section 
and regarding the destruction and return of information or records as 
permitted by law.
    (q) Privacy Protection Act. All authorizations pursuant to this 
section must comply with the provisions of the Privacy Protection Act 
(PPA), 42 U.S.C. 2000aa(a) et seq. Members of the Department must 
consult the Justice Manual for specific guidance on complying with the 
PPA. Among other things, members of the Department are not 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, see 42 U.S.C. 2000aa(a)(1) and (b)(1), if the sole 
purpose is to further the investigation of a person other than the 
member of the news media.
    (r) Anti-circumvention. Members of the Department shall not direct 
any third party to take any action that would violate a provision of 
this section if taken by a member of the Department.
    (s) Failure to comply. Failure to obtain the prior authorization 
required by this section may constitute grounds for an administrative 
reprimand or other appropriate disciplinary action.
    (t) General provision. This section 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: October 26, 2022.
Merrick B. Garland,
Attorney General.
[FR Doc. 2022-23679 Filed 11-2-22; 8:45 am]
BILLING CODE 4410-14-P