[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]
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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.
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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]
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