US Department of Justice will no longer obtain reporters’ phone records

The US Department of Justice (DoJ) said on Saturday it will no longer secretly obtain reporters’ phone records during leak investigations, a practice decried by news organizations and press freedom groups.

The reversal followed a pledge last month by Joe Biden, who said it was “simply, simply wrong” to seize journalists’ records and that he would not permit the practice.

Though the president’s comments in an interview were not immediately accompanied by a change in policy, statements from the White House and DoJ on Saturday signaled the end of a tactic used for years.

Democratic and Republican administrations have used subpoenas and court orders to obtain journalists’ records in an effort to identify sources who reveal classified information.

But the practice received renewed scrutiny over the past month as DoJ officials alerted reporters at the Washington Post, CNN and the New York Times that their phone records had been obtained in the final year of the Trump administration.

The latest revelation came on Friday night when the Times reported the existence of a gag order that barred the newspaper from revealing a secret court fight over efforts to obtain the email records of four reporters. The tussle began under Trump but persisted under Biden, whose justice department moved to withdraw the order.

The White House press secretary, Jen Psaki, said no one at the White House was aware of the gag order until Friday night, but that more broadly, “the issuing of subpoenas for the records of reporters in leak investigations is not consistent with the president’s policy direction to the department”.

In a separate statement a justice department spokesman, Anthony Coley, said that “in a change to its longstanding practice”, the department “will not seek compulsory legal process in leak investigations to obtain source information from members of the news media doing their jobs”.

He added: “The department strongly values a free press, protecting first amendment values, and is committed to taking all appropriate steps to ensure the independence of journalists.”

In ruling out “compulsory legal process” for reporters in leak investigations, the department also appeared to say that it would not force journalists to reveal in court the identity of their sources.

The statement did not say whether the DoJ would still conduct aggressive leak investigations without obtaining records. It also did not define who would be counted as a member of the media for the purposes of the policy and how broadly the protection would apply.

Even so, it marked a startling reversal. The Obama justice department, under attorney general Eric Holder, alerted the Associated Press in 2013 that it had secretly obtained two months of phone records of reporters and editors in what the top AP executive called a “massive and unprecedented intrusion”.

Holder announced a revised set of guidelines for leak investigations, including requiring the authorization of the highest levels of the department before subpoenas for news media records could be issued.

But the DoJ preserved its prerogative to seize journalists’ records, and the recent disclosures show that the practice continued in the Trump-era.


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