NEW YORK—In a letter sent today to U.S. Attorney General William Barr, PEN America and five partnering press freedom organizations urged the Department of Justice to reject a proposed revision to its guidelines regarding how records are obtained from journalists during criminal leak investigations.

The existing Department of Justice guidelines require prosecutors to use all available methods for identifying the source of leaks before issuing a subpoena, a court order, or a search warrant. The current rules also generally require the Department to alert a news organization in advance before it issues a subpoena. However, due to speculation that the agency is burdened by the increase in the number of criminal leak investigations, the Department is considering revising the guidelines to alleviate these requirements. See 28 CFR 50.10(a)(3).

According to an article by investigative journalist John Solomon, the proposed revisions would “lower the threshold that prosecutors must meet before requesting subpoenas for journalists’ records” and eliminate the requirement to need to warn a media organization or other freelance entity that the Department of Justice plans to issue a subpoena.

“The Department of Justice has a responsibility to protect both national security and freedom of the press,” the letter reads in part. “And the proposed revision would increase the risks that journalists face in their newsgathering activities and therefore fall short of this dual mandate, putting front and center in the minds of journalists the heightened threat of unbridled government seizure.”

“Journalists are facing unprecedented threats in this country for simply doing their job,” said Nora Benavidez, Director of U.S. Free Expression Programs at PEN America. “We have serious concern that the government’s acceptance of a proposal to revise these guidelines would have a chilling effect on journalists, who may then think twice about the surveillance of their calls, texts, emails and other correspondence. A free press means having reporters who are free to do their job without fear of threats or overreach from the government. We hope the Department agrees and upholds this fundamental constitutional right.”

Signatories to this letter include PEN America, National Press Club, Reporters without Borders, Free Press, Electronic Frontier Foundation, and the National Press Club Journalism Institute. The letter from the coalition can be found here


PEN America stands at the intersection of literature and human rights to protect open expression in the United States and worldwide. We champion the freedom to write, recognizing the power of the word to transform the world. Our mission is to unite writers and their allies to celebrate creative expression and defend the liberties that make it possible.

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