    [Federal Register Volume 90, Number 84 (Friday, May 2, 2025)]
    [Rules and Regulations]
    [Pages 18785-18789]
    From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
    [FR Doc No: 2025-07566]

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

    DEPARTMENT OF JUSTICE

    28 CFR Part 50

    [Docket No. OAG193; AG Order No. 6251-2025]

    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 Department of Justice regulations
    regarding obtaining information from news media to bring the
    regulations back into alignment with the decades-long practices in
    place before dramatic changes were adopted in 2022. The purpose of
    these regulations since their first adoption more than 50 years ago has
    been to strike the proper balance between the public's interest in the
    free dissemination of ideas and information and the public's interest
    in effective law enforcement and the fair administration of justice.
    But after several years under these changes, the Department has
    concluded that the current policy strikes the wrong balance,
    undermining the Department's ability to safeguard classified,
    privileged, and other sensitive information, and that the earlier,
    longstanding practices related to news media records were more optimal.
    The rule therefore rescinds the amendments of 2022 and adopts a
    modified version of the 2014 regulations, revised to better align with
    what had been longstanding Department practice.

    DATES: This rule is effective on May 2, 2025.

    FOR FURTHER INFORMATION CONTACT: Ashley Dugger, Director, Office of
    Enforcement Operations, Criminal Division, (202) 514-6809. Although not
    required by 5 U.S.C. 553(b)(4), a summary of this rule may be found in
    the docket for this rulemaking at www.regulations.gov.

    SUPPLEMENTARY INFORMATION:

    I. Discussion

        On April 25, 2025, the Attorney General issued a memorandum
    revoking an earlier memorandum issued by then-Attorney General Garland
    on July 19, 2021 (``2021 AG Memo''). The revoked 2021 AG Memo was a
    significant departure from the Department's decades-old practices
    regarding the use of compulsory legal process for the purpose of
    obtaining information from,

    [[Page 18786]]

    or records of, members of the news media and directed the Deputy
    Attorney General to promulgate regulations to codify those new
    policies. Accordingly, the Department published a final rule
    implementing those policies on November 3, 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, 87 FR 66239 (Nov. 3, 2022).
        Since the promulgation of those regulations, there have been
    growing concerns about Federal government employees intentionally
    disseminating confidential, privileged, or otherwise protected
    information to the media for the purpose of undermining Executive
    agencies' legal obligations and policies. The Attorney General has
    determined that the constraints imposed by the 2022 amendments to 28
    CFR 50.10 have unduly hindered the Department's efforts to subpoena
    journalists who have coordinated with Federal employees to leak
    protected materials. Accordingly, the Attorney General has revoked the
    2021 AG Memo and is issuing regulations that will allow the Department
    of Justice to better safeguard the security of protected government
    information.
        The Attorney General is issuing this final rule to revise the
    existing provisions in the Department's regulations at 28 CFR 50.10.
    These revisions implement the Attorney General's April 25, 2025,
    directive.

    II. Regulatory Certifications

    A. Administrative Procedure Act

        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).

    B. Regulatory Flexibility Act

        Because this final rule is not promulgated as a ``final rule under
    [5 U.S.C.] 553'' and is 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.

    C. Executive Orders 12866 and 13563--Regulatory Planning and Review

        This action has been drafted and reviewed in accordance with
    section 1(b) of Executive Order 12866 of September 30, 1993, Regulatory
    Planning and Review, and with section 1(b) of Executive Order 13563 of
    January 18, 2011, Improving Regulation and Regulatory Review.
        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. Regardless, out of an abundance of caution, this
    action has been reviewed by the Office of Management and Budget.

    D. 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,
    Civil Justice Reform.

    E. 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, Federalism, this rule does not have
    sufficient federalism implications to warrant the preparation of a
    federalism assessment.

    F. 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.

    G. Congressional Review Act

        This action pertains to agency management and is a rule of agency
    organization, procedure, or practice that does not substantially affect
    the rights or obligations of non-agency parties; accordingly, this
    action is not a ``rule'' as that term is used in the Congressional
    Review Act, 5 U.S.C. 801 et seq. Therefore, the reporting requirement
    of 5 U.S.C. 801 does not apply.

    H. Executive Order 14192--Regulatory Costs

        This regulation is excepted from Executive Order 14192 of January
    31, 2025, Unleashing Prosperity Through Deregulation, because it is
    related to agency organization, management, or personnel.

    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. Revise Sec.  50.10 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 lawful 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, such 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

    [[Page 18787]]

    measures, not standard investigatory practices.
        (4) Investigative activities pursuant to this policy may also be
    subject to the Privacy Protection Act of 1979, 42 U.S.C. 2000aa.
        (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) Regardless of affiliation with the news media, 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 13224 of September 23,
    2001 (66 FR 49079);
        (D) 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));
        (E) Committing or attempting to commit a crime of terrorism, as
    described in 18 U.S.C. 2331(5) or 2332b(g)(5);
        (F) Committing or attempting to commit a crime involving the
    provision of material support or resources to a terrorist organization;
    or
        (G) Aiding, abetting, or conspiring in illegal activity with a
    person or organization described in paragraphs (b)(1)(ii)(A) through
    (F) 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 civil
    investigative demands (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) orders'') or 18 U.S.C. 3123 (``3123 orders''), 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) Communications records. (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) Communication service provider. A communication service
    provider is a provider of 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) Business records. (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 lawful
    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 approved by
    the United States Attorney or Assistant Attorney General responsible
    for the matter.
        (3) Exceptions to the Attorney General authorization requirement
    may be made as follows:
        (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) 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, or other information unrelated
    to lawful newsgathering activities; or for information or records
    relating to personnel not involved in lawful newsgathering activities.
        (B) 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 unrelated to
    their lawful newsgathering activities.
        (iii) In the circumstances identified in paragraphs (c)(3)(ii)(A)
    and (B) 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 prior to issuing a subpoena or requesting a
    court order; 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

    [[Page 18788]]

    the Criminal Division's Office of Enforcement Operations within 10
    business days of the issuance of the subpoena or court order.
        (4) Considerations for the Attorney General in determining whether
    to authorize the issuance of a subpoena to a member of the news media,
    or 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 sources other
    than the member of the news media who would be the target of the
    requested compulsory process, that a crime has occurred, and that the
    information sought is essential to a successful investigation or
    prosecution. 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 sources other
    than the member of the news media who would be the target of the
    requested compulsory process, 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, communications records, or business records
    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 such negotiations would pose a 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 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, does not
    apply to negotiations described in paragraph (c)(4)(iii)(A) of this
    section. Accordingly, members of the Department do not need to secure
    authorization from the Attorney General to pursue such negotiations.
        (iv) In investigations of unauthorized disclosures of national
    defense information or of classified information, where the relevant
    Department or agency head 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
    Department's or agency's continued support for the investigation and
    prosecution, the Attorney General may authorize the Department of
    Justice, in such investigations, to issue subpoenas to members of the
    news media. The Attorney General may also authorize the Department, in
    such investigations, to use subpoenas, 2703(d) orders, or 3123 orders
    to obtain communications records or business records of a member of the
    news media.
        (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, should avoid requiring production of a large volume of material,
    and should give reasonable and timely notice of the demand.
        (vi) 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).
        (d) Applying for warrants to search the premises, property, or
    communications records of members of the news media. (1) 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 be approved 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 communications records of
    a member of the news media, the Attorney General should take into
    account the considerations identified in paragraph (c)(4) of this
    section.
        (4) 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 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 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 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

    [[Page 18789]]

    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 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, the coverage or investigation of news, or while engaged
    in the performance of duties undertaken as a member of the news media,
    without 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, the
    coverage or investigation of news, or while engaged in the performance
    of duties undertaken as a member of the news media, without 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 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 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, 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 (as those terms
    are defined in section 111 of the Adam Walsh Child Protection and
    Safety Act of 2006, 34 U.S.C. 20911), 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 section, 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.

        Dated: April 25, 2025.
    Pamela Bondi,
    Attorney General.
    [FR Doc. 2025-07566 Filed 5-1-25; 8:45 am]
    BILLING CODE 4410-14-P