II. Enhanced Approvals and Heightened Standards for Use of Search Warrants and Section 2703(d) Orders
The Privacy Protection Act of 1980 (PPA), 42 U.S.C. § 2000aa, generally prohibits the search or seizure of work product and documentary materials held by individuals who have a purpose to disseminate information to the public. The PPA, however, contains a number of exceptions to its general prohibition, including the "suspect exception" which applies when there is "probable cause to believe that the person possessing such materials has committed or is committing a criminal offense to which the materials relate," including "the receipt, possession, or communication of information relating to the national defense, classified information, or restricted data" under enumerated code provisions. See 42 U.S.c. §§ 2000aa(a)(1) and (b)(1). Under current Department policy, a Deputy Assistant Attorney General may authorize an application for a search warrant that is covered by the PPA, and no higher level reviews or approvals are required.
First, the Department will modify its policy concerning search warrants covered by the PPA involving members of the news media to provide that work product materials and other documents may be sought under the "suspect exception" of the PPA only when the member of the news media is the focus of a criminal investigation for conduct not connected to ordinary newsgathering activities. Under this revised policy, the Department would not seek search warrants under the PPA 's suspect exception if the sole purpose is the investigation of a person other than the member of the news media.
Second, the Department would revise current policy to elevate the current approval requirements and require the approval of the Attorney General for all search warrants and court orders issued pursuant to 18 U.S.c. § 2703(d) directed at members of the news media. In addition, as part of the new approval process the Attorney General would consider the factors in 28 C.F .R. § 50.10 - which currently apply to subpoenas to members of the news media or to communication service providers for the telephone toll records of members of the news media, but not to search warrants or § 2703(d) orders - including demonstrating that the information sought is essential to a successful investigation, that other reasonable alternative investigative steps to obtain the information have been exhausted, and that the request has been narrowly tailored to obtain only the information necessary for the investigation (including the use of search methods that limit any intrusion into potentially protected materials, as described above). The presumption of notice, and standards applicable to requests for delayed notice, will also apply to search warrants and § 2703(d) orders that seek access to records of members of the news media related to newsgathering activities. A thorough evaluation of relevant considerations, including these factors, will be presented to the Deputy Attorney General, and ultimately the Attorney General, for authorization. This policy change will bring the approval protocols for search warrants issued under the PPA and § 2703(d) orders in line with those required for other investigative tools that implicate records of members of the news media.
