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Atty. Gen. Eric Holder to tighten rules on seizing reporters’ data

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WASHINGTON — Atty. Gen. Eric H. Holder Jr. promised tough new restrictions Friday on the seizure of journalists’ phone records and emails, backing off from the Obama administration’s aggressive use of secret court orders to obtain news media records as part of investigations into leaks of government secrets.

The changes, which lawyers for news organizations hailed as significant new protections for the media’s ability to freely report on government activities, are being proposed after two months of controversy over the administration’s policies regarding surveillance and the free flow of information.

Attention to the issue began with disclosures that the FBI had secretly obtained phone records and emails from reporters at the Associated Press and Fox News. News of those investigations prompted President Obama to direct Holder to review the Justice Department’s policies.

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Pressure on the administration to change its policies mounted after Edward Snowden, a former National Security Agency contractor, disclosed information about the government’s widespread gathering of telephone and email records for use in counter-terrorism investigations.

Holder presented the proposed policy changes to Obama on Friday. Under the new rules, prosecutors in nearly all cases would be required to give news organizations advance notice before seeking records of contacts between reporters and their sources. That would give a news organization time to challenge the demand for records in court.

Moreover, the department would be forbidden from using search warrants to obtain records from reporters except in cases in which the reporter is the target of a criminal investigation not involving news gathering. That rule abandoned the practice used in the Fox News case of branding a journalist as a possible co-conspirator in the crime of espionage.

“Members of the news media will not be subject to prosecution based solely on news gathering activities,” Holder said in a report to Obama.

The Justice Department report also tacitly conceded a point made by many of Obama’s critics — that the administration had launched too many criminal investigations into leaks.

Leak investigations “are inherently difficult” and “resource intensive,” the report said, adding that the Justice Department would work with intelligence agencies to find ways to “address information leaks internally” by withdrawing security clearances from suspects or taking other steps that don’t involve criminal investigations. A White House spokesman said Obama supported that shift away from prosecutions.

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The new guidelines were greeted with relief from some journalism organizations.

“The Associated Press is gratified that the Department of Justice took our concerns seriously,” said AP spokeswoman Erin Madigan White. “The description of the new guidelines released today indicates they will result in meaningful, additional protection for journalists.”

The Reporters Committee for Freedom of the Press, a nonprofit group that provides legal advice to journalists and coordinated a media coalition to suggest changes to the Justice Department, took a more cautious approach. It said Holder was making improvements to existing guidelines but it believed “an impartial judge” should be involved before any seizure of reporters’ records.

Holder also called on Congress to move forward with passage of a federal shield law to protect journalists. Though some states have such laws, the federal government does not have a media shield law that limits the circumstances in which journalists can be made into sources for a government investigation, and proposals to pass one have long been stalled.

But with new momentum from the recent controversies, Senate Judiciary Committee Chairman Patrick J. Leahy (D-Vt.) promised his panel would take up the legislation anew.

“In an open society, a free press is essential to guaranteeing the public’s right to know,” Leahy said in a statement. “That is why the burden is always on the government when it seeks information about the press or confidential sources.”

The AP’s top editors had been surprised to learn that federal agents had obtained dialing records for more than 20 phone lines used by their journalists during a two-month period in 2012. The seizure arose from a U.S. attorney’s effort to learn who in the government may have leaked the details of the CIA’s foiling of a plot to sneak a bomb onto an airplane bound for the United States. Obama’s top national security advisors feared the AP’s story revealed that the CIA had a secret informer in Yemen.

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Lee Levine, a Washington attorney and legal advisor for the Tribune Co., said that “these are serious changes that will have a positive effect for journalists. It is important they have said very clearly that journalists will not be prosecuted for doing their jobs.” The Tribune Co., which owns the Los Angeles Times and other newspapers, was one of many news organizations that held discussions with the Justice Department about the changes.

In the Fox News case, the FBI obtained a search warrant to seize the phone records and emails of reporter James Rosen. His stories in 2009 had revealed information that had come from inside the North Korea government. The FBI was building a criminal case against Stephen Jin-Woo Kim, a former State Department arms expert who was suspected of leaking details from classified intelligence reports. The FBI agent who sought the search warrant said Rosen could be guilty of aiding and abetting the leaks, a violation the Espionage Act.

While the Obama administration had been under pressure to find who was leaking national secrets, the reports revealing the FBI’s aggressive tactics triggered a backlash in the news media and in Congress. AP President Gary Pruitt called the seizure of the phone records a “massive and unprecedented intrusion” into the organization’s news operation that occurred “without any notice.” Some lawmakers on Capitol Hill who had criticized the White House over the leaks lambasted the administration for heavy-handed tactics against AP and Fox News.

Since the 1970s, the Justice Department has relied on internal guidelines to limit such searches. It cites the “importance of the freedom of press” and puts restrictions on subpoenas of the phone records of journalists. One provision said an agent “must first attempt negotiations with the media” before seeking records. But investigators at the U.S. attorney’s office in Washington bypassed that provision because they decided that seeking cooperation from AP or Fox might “pose a substantial threat” to the investigation.

In Friday’s report to the president, Holder made clear that advance notification was the rule in nearly all situations.

“In all but the most exceptional cases,” the government will contact a news organization and try to negotiate access to records that are needed in an investigation, his report said. The exceptions involve situations in which lives are stake or there is danger of “grave harm” to the nation’s security, it said.

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david.savage@latimes.com

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