[Code of Federal Regulations]
[Title 28, Volume 2]
[Revised as of July 1, 2003]
From the U.S. Government Printing Office via GPO Access
[CITE: 28CFR50.10]

[Page 42-44]
 
                    TITLE 28--JUDICIAL ADMINISTRATION
 
              CHAPTER I--DEPARTMENT OF JUSTICE (Continued)
 
PART 50--STATEMENTS OF POLICY--Table of Contents
 
Sec. 50.10  Policy with regard to the issuance of subpoenas to members of the news media, subpoenas for telephone toll records of members of the news media, and 
          the interrogation, indictment, or arrest of, members of the 
          news media.

    Because freedom of the press can be no broader than the freedom of 
reporters to investigate and report the news, the prosecutorial power of 
the government should not be used in such a way that it impairs a 
reporter's responsibility to cover as broadly as possible controversial 
public issues. This policy statement is thus intended to provide 
protection for the news media from forms of compulsory process, whether 
civil or criminal, which might impair the news gathering function. In 
balancing the concern that the Department of Justice has for the work of 
the news media and the Department's obligation to the fair 
administration of justice, the following guidelines shall be adhered to 
by all members of the Department in all cases:
    (a) In determining whether to request issuance of a subpoena to a 
member of the news media, or for telephone toll records of any member of 
the news media, the approach in every case must be 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.
    (b) All reasonable attempts should be made to obtain information 
from alternative sources before considering issuing a subpoena to a 
member of the news media, and similarly all reasonable alternative 
investigative steps should be taken before considering issuing a 
subpoena for telephone toll records of any member of the news media.
    (c) Negotiations with the media shall be pursued in all cases in 
which a subpoena to a member of the news media is contemplated. These 
negotiations should attempt to accommodate the interests of the trial or 
grand jury with the interests of the media. Where the nature of the 
investigation permits, the government should make clear what its needs 
are in a particular case as well as its willingness to respond to 
particular problems of the media.
    (d) Negotiations with the affected member of the news media shall be 
pursued in all cases in which a subpoena for the telephone toll records 
of any member of the news media is contemplated where the responsible 
Assistant Attorney General determines that such negotiations would not 
pose a substantial threat to the integrity of the investigation in 
connection with which the records are sought. Such determination shall 
be reviewed by the Attorney General when considering a subpoena 
authorized under paragraph (e) of this section.
    (e) No subpoena may be issued to any member of the news media or for 
the telephone toll records of any member of the news media without the 
express authorization of the Attorney General: Provided, That, if a 
member of the news media with whom negotiations are conducted under 
paragraph (c) of this section expressly agrees to provide the material 
sought, and if that material has already been published or broadcast, 
the United States Attorney or the responsible Assistant Attorney 
General, after having been personally satisfied that the requirements of 
this section have been met, may authorize issuance of the subpoena and 
shall thereafter submit to the Office of Public Affairs a report 
detailing the circumstances surrounding the issuance of the subpoena.
    (f) In requesting the Attorney General's authorization for a 
subpoena to a member of the news media, the following principles will 
apply:
    (1) In criminal cases, there should be reasonable grounds to 
believe, based on information obtained from nonmedia sources, that a 
crime has occurred, and

[[Page 43]]

that the information sought is essential to a successful investigation--
particularly with reference to directly establishing guilt or innocence. 
The subpoena should not be used to obtain peripheral, nonessential, or 
speculative information.
    (2) In civil cases there should be reasonable grounds, based on 
nonmedia sources, to believe that the information sought is essential to 
the successful completion of the litigation in a case of substantial 
inportance. The subpoena should not be used to obtain peripheral, 
nonessential, or speculative information.
    (3) The government should have unsuccessfully attempted to obtain 
the information from alternative nonmedia sources.
    (4) The use of subpoenas to members of the news media should, except 
under exigent circumstances, be limited to the verification of published 
information and to such surrounding circumstances as relate to the 
accuracy of the published information.
    (5) Even subpoena authorization requests for publicly disclosed 
information should be treated with care to avoid claims of harassment.
    (6) Subpoenas should, wherever possible, be directed at material 
information regarding a limited subject matter, should cover a 
reasonably limited period of time, and should avoid requiring production 
of a large volume of unpublished material. They should give reasonable 
and timely notice of the demand for documents.
    (g) In requesting the Attorney General's authorization for a 
subpoena for the telephone toll records of members of the news media, 
the following principles will apply:
    (1) There should be reasonable ground to believe that a crime has 
been committed and that the information sought is essential to the 
successful investigation of that crime. The subpoena should be as 
narrowly drawn as possible; it should be directed at relevant 
information regarding a limited subject matter and should cover a 
reasonably limited time period. In addition, prior to seeking the 
Attorney General's authorization, the government should have pursued all 
reasonable alternative investigation steps as required by paragraph (b) 
of this section.
    (2) When there have been negotiations with a member of the news 
media whose telephone toll records are to be subpoenaed, the member 
shall be given reasonable and timely notice of the determination of the 
Attorney General to authorize the subpoena and that the government 
intends to issue it.
    (3) When the telephone toll records of a member of the news media 
have been subpoenaed without the notice provided for in paragraph (e)(2) 
of this section, notification of the subpoena shall be given the member 
of the news media as soon thereafter as it is determined that such 
notification will no longer pose a clear and substantial threat to the 
integrity of the investigation. In any event, such notification shall 
occur within 45 days of any return made pursuant to the subpoena, except 
that the responsible Assistant Attorney General may authorize delay of 
notification for no more than an additional 45 days.
    (4) Any information obtained as a result of a subpoena issued for 
telephone toll records shall be closely held so as to prevent disclosure 
of the information to unauthorized persons or for improper purposes.
    (h) No member of the Department shall subject a member of the news 
media to questioning as to any offense which he is suspected of having 
committed in the course of, or arising out of, the coverage or 
investigation of a news story, or while engaged in the performance of 
his official duties as a member of the news media, without the express 
authority of the Attorney General: Provided, however, That where exigent 
circumstances preclude prior approval, the requirements of paragraph (l) 
of this section shall be observed.
    (i) A member of the Department shall secure the express authority of 
the Attorney General before a warrant for an arrest is sought, and 
whenever possible before an arrest not requiring a warrant, of a member 
of the news media for any offense which he is suspected of having 
committed in the course of, or arising out of, the coverage or 
investigation of a news story, or while engaged in the performance of 
his official duties as a member of the news media.

[[Page 44]]

    (j) 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 which he is suspected of having 
committed in the course of, or arising out of, the coverage or 
investigation of a news story, or while engaged in the performance of 
his official duties as a member of the news media, without the express 
authority of the Attorney General.
    (k) 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 a bill of indictment or to file an information 
against, a member of the news media for an offense which he is suspected 
of having committed during the course of, or arising out of, the 
coverage or investigation of a news story, or committed while engaged in 
the performance of his official duties as a member of the news media, a 
member of the Department shall state all facts necessary for 
determination of the issues by the Attorney General. A copy of the 
request shall be sent to the Director of Public Affairs.
    (l) When an arrest or questioning of a member of the news media is 
necessary before prior authorization of the Attorney General can be 
obtained, notification of the arrest or questioning, the circumstances 
demonstrating that an exception to the requirement of prior 
authorization existed, and a statement containing the information that 
would have been given in requesting prior authorization, shall be 
communicated immediately to the Attorney General and to the Director of 
Public Affairs.
    (m) In light of the intent of this section to protect freedom of the 
press, news gathering functions, and news media sources, this policy 
statement does not apply to demands for purely commercial or financial 
information unrelated to the news gathering function.
    (n) Failure to obtain the prior approval of the Attorney General may 
constitute grounds for an administrative reprimand or other appropriate 
disciplinary action. The principles set forth in this section are not 
intended to create or recognize any legally enforceable right in any 
person.

[Order No. 916-80, 45 FR 76436, Nov. 19, 1980]