In Bid to Placate Legacy Media, DOJ Moves Closer to Instituting Official Press

The First Amendment was written, in part, to eliminate the kind of official press that parrots only the King’s sanctioned views. But with its revised “News Media Policies,” DOJ gets us closer to having just that, an official press.

That’s because all the changes laid out in the new policy (some of which are good, some of which are obviously flawed) apply only to “members of the news media.” They repeat over and over and over and over, “news media.” I’m not sure they once utter the word “journalist” or “reporter.” And according to DOJ’s Domestic Investigation and Operations Guide, a whole slew of journalists are not included in their definition of “news media.”

DIOG does include online news in its definition of media (PDF 157).

“News media” includes persons and organizations that gather, report or publish news, whether through traditional means (e.g., newspapers, radio, magazines, news service) or the on-line or wireless equivalent. A “member of the media” is a person who gathers, reports, or publishes news through the news media.

But then it goes on to exclude bloggers from those included in the term “news media.”

The definition does not, however, include a person or entity who posts information or opinion on the Internet in blogs, chat rooms or social networking sites, such as YouTube, Facebook, or MySpace, unless that person or entity falls within the definition of a member of the media or a news organization under the other provisions within this section (e.g., a national news reporter who posts on his/her personal blog).

Then it goes onto lay out what I will call the “WikiLeaks exception.”

As the term is used in the DIOG, “news media” is not intended to include persons and entities that simply make information available. Instead, it is intended to apply to a person or entity that gathers information of potential interest to a segment of the general public, uses editorial skills to turn raw materials into a distinct work, and distributes that work to an audience, as a journalism professional.

The definition does warn that if there is any doubt, the person should be treated as media. Nevertheless, the definition seems to exclude a whole bunch of people (including, probably, me), who are engaged in journalism.

The limitation of all these changes to the “news media” is most obvious when it treats the Privacy Protection Act — which should have prevented DOJ from treating James Rosen as a  suspect. They say,

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 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 the reviews 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. [my emphasis]

The PPA, however, applies to all persons “reasonably believed to have a purpose to disseminate to the public a newspaper, book, broadcast, or other similar form of public communication.”

Notwithstanding any other law, it shall be unlawful for a government officer or employee, in connection with the investigation or prosecution of a criminal offense, to search for or seize any work product materials possessed by a person reasonably believed to have a purpose to disseminate to the public a newspaper, book, broadcast, or other similar form of public communication, in or affecting interstate or foreign commerce;

I’m clearly covered by the PPA. But the FBI could easily decide to exclude me from this “news media” protection so as to be able to snoop into my work product.

Congratulations to the “members of the news media” who have been deemed the President’s official press. I hope you use your privileges wisely.

Update: I’ve learned that the issue of whom this applied to did come up in background meetings at DOJ; in fact, DOJ raised the issue. The problem is, there is no credentialing system that could define who gets this protection and DOJ didn’t want to lay it out (and most of the people invited have never been anything but a member of the news media, making it hard for them to understand how to differentiate a journalist).

Ultimately, I think DOJ is so anxious for Congress to pass a shield law (which they say elsewhere in their report) because it’ll mean Congress will do the dirty work of defining who is and who is not a journalist.

Marcy has been blogging full time since 2007. She’s known for her live-blogging of the Scooter Libby trial, her discovery of the number of times Khalid Sheikh Mohammed was waterboarded, and generally for her weedy analysis of document dumps.

Marcy Wheeler is an independent journalist writing about national security and civil liberties. She writes as emptywheel at her eponymous blog, publishes at outlets including the Guardian, Salon, and the Progressive, and appears frequently on television and radio. She is the author of Anatomy of Deceit, a primer on the CIA leak investigation, and liveblogged the Scooter Libby trial.

Marcy has a PhD from the University of Michigan, where she researched the “feuilleton,” a short conversational newspaper form that has proven important in times of heightened censorship. Before and after her time in academics, Marcy provided documentation consulting for corporations in the auto, tech, and energy industries. She lives with her spouse and dog in Grand Rapids, MI.

26 replies
  1. C says:

    Good catch Marcy, It looks like they are trying to have their cake and eat it too. On the one hand they get glowing, or at least accepting reports, from places like Huffpo for “Ending their attacks on journalists” while at the same time continuing to crack down on people who publish things they don’t like. Much like the insulting PCLOB this is more PR.

    Clearly with the spineless abject grovelling from the WaPo editorial board they have nothing to fear from “Establishment Media.”

  2. lefty665 says:

    They might as well throw this bone. They’ve been overtaken by events.

    We now know NSA had it all, no additional warrant or assertion of criminality needed. It was all for show and intimidation of the press corps (however defined).

  3. peasantparty says:

    The DOJ decides it is going to police itself regarding to policing the Journalists.

    Now if that doesn’t just calm you down and make you all happy what would?

    I’m not calm. I’m not happy. I’m infuriated!
    Since when does the Department of Justice become an intell agency, A purveyor of Court Criers, A law making body of it’s own accord, and A Government within itself?

    PEOPLE! Seriously. WTF?

  4. Frank33 says:

    Q: What is a lamestream news media?
    A; A shill paid by corporations and approved by the Government Minders

    Q: What is a journalist? (Reporter, Correspondent, Newshound)
    A: Someone who discovers things the rich, powerful and governments, are attempting to conceal.

  5. Jeff Kaye says:

    So simple…

    “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press…”

    And lefty665 has made the main point. We now know they had (have) it all anyway.

  6. Jeff Kaye says:

    Reminds me of a government that said only official newspapers could be published that had paid a special governmental tax, and carried a special stamp upon the paper that would indicate that it had been so approved by the government… Oh, wait! That was Imperial Britain and the country was Colonial America, and the law was called the Stamp Act.

  7. TomVet says:

    I wonder how many of these would be approved – or not.
    Town Crier
    Wandering Minstrel
    Town Gossip
    Any of numerous pseudonymous Federalists and Anti-Federalists who authored all those broadsides, letters, pamphlets and journals back in the days of yore

    I think all would be considered the “news media” of their era and I’ll bet the King’s men were equally interested in them as our agencies are today.

  8. C says:

    @lefty665: I think you are right. The former story was already dragging them down with the otherwise easily-placated ‘mainstream’ press. Perobably by throwing out this bone they hope that the lapdog establishment press will go back to cleaning itself and ignore the steps they are taking to shut down real journalism.

  9. CasualObserver says:

    I looked all over for this at DOJ site yesterday after the press release, never could find it. Glad to see that they are actually planning to make rule changes, rather than going the ‘guideline’ route, which would accomplish nothing (having no force of law). That said, my understanding is that rule changes are relatively easy to do and so whatever improvements might be made, they can easily be unmade by this or later administrations.

    I’m guessing rule changes–whatever they come to be–will have to be posted in the register and will be subject to public comment?

  10. Tim White says:

    The Emperor and His Surveillance State get scarier everyday.

    The Authoritarians need to be stopped.

    If Grover Cleveland 2.0 runs in 2016, I’m gonna be out there knocking on doors and doing sign visibilities for him/her all the time.

  11. rosalind says:

    well you know what ya gotta do, marcy. start a newspaper called the “grand rapids press gazette”, go bankrupt, then move the whole operation online.

    voila: realz news media.

  12. M.Black says:


    I believe it was Julian Assange himself who pointed out, before Snowden’s detailed revelations, that such charades as the James Rosen warrant were just to feign plausibly legal “due process” — when in fact the government already possessed the entirety of Rosen’s communications.

  13. jo6pac says:

    So only the lying corp. media is covered that sounds about right for eric the holder and doj lackeys in the press world.

  14. jawbone says:

    @ 12 — My first thought was that under this government the Federalist Papers would have been declared, oh, something. Something which would have meant they should not be distributed.

    Damn, there only so many ways to control people, and this government seems to be moving toward a lot of them!

    And they find such good examples: The Stasi, the Official Press, etc.

    I’m 67 and never dreamed I would live to see such things in my nation. But, I guess, I shoulda known….

  15. joanneleon says:

    I’m really upset about this. I don’t like the ambiguity and I really don’t like the potential for cutting bloggers out of this “news media” credentialed set. I really don’t like the fact that it is a decree rather than a court decision either.

    I feel frustrated because I don’t know how to determine if I would be protected under this or not, both in my current writing, and in the site that I’m in the process of building, where the people writing would still be considered bloggers but their work is just as good and serves the same purpose as journalists, where they do engage in the kind of journalling and news reporting that is described in this decree, and yet I doubt that the DoJ would “credential” us.

    So how does one know if they are covered or not? Will there be a credentialing process? Will the DoJ allow you to apply for credentials and then license you and deem you protected or not protected under their new rules? How the f do you figure out if you’re covered or not?

    Just a side note, they talk about opinion writers as if they would not be covered. Does that mean that Maureen Dowd and Eugene Robinson are not covered? I doubt it. The fact that they work for big news orgs probably means they are covered. So then why are other opinion writers who do publish but not to a big news org not covered?

    I think we need to organize on this, big time. I think we need to petition the DoJ to cover bloggers or to at least make it really clear to every writer who wants to know if they are covered or not. Will anyone be starting this process of organizing some kind of movement/petition or something on this?

  16. lefty665 says:

    @M.Black: Don’t doubt it a bit, but I’ve been yammering about 100% collection for years. It’s easier for me, I’m not holed up in an embassy.

    @18 jawbone – “…never dreamed I’d live to see such things…” – Me neither, and I can feel my Dad rolling in his grave in Arlington Cemetery.

    Your update’s got it right on the nose Marcy:

    “Ultimately, I think DOJ is so anxious for Congress to pass a shield law (which they say elsewhere in their report) because it’ll mean Congress will do the dirty work of defining who is and who is not a journalist.”

    Plus, it will have “national security” and “terrah” exemptions a mile wide to give domestic intercept authority independent of 702 and 215. Holder’s already said that with (approx) “We don’t want to have to charge a journalist to get the traffic”. This will be a vehicle to add another layer of legal cover under the guise of “shielding” “journalists”. Doublespeak that Winston would understand.

    Add Amendment #1 to #4 in the dustbin of history. As Duhbya said “It’s just a goddamned piece of paper”.

  17. joanneleon says:

    Referring to the update: So if DoJ is nudging Congress to enact a shield law, and Congress defines what a journalist is, what does that do to the PPA definition? If a case comes before a court, which definition would the court use?

    Also, another thing. I notice that part that you call the Wikileaks exception. Is it not possible that a Greenwald exception is also in there, regarding opinion writers? Personally I don’t think Glenn is an opinion writer. He packs his columns with civil liberties knowledge, usually reports a recent event in his columns and his take on it. I think it’s dangerous to start separating “opinion writers” from the rest of the journalists just because they express a point of view in addition to reporting on a subject. I’m also getting even more confused about the definition of “press”.

  18. joanneleon says:

    @lefty665: Exactly. We know this is coming. I also expect that “shield” to be doublespeak.

    Plus, it will have “national security” and “terrah” exemptions a mile wide to give domestic intercept authority independent of 702 and 215.

  19. Hmmm says:

    Notwithstanding any other law, it shall be unlawful for a government officer or employee, in connection with the investigation or prosecution of a criminal offense, to search for or seize…

    Uhm, does that construction leave the door open to outsourcing said search and/or seizure?

  20. C says:

    @Hmmm: Under a plain reading I might say no but I’m inclined to agree with you in thinking that is indeed a reading that would be accepted.

  21. Julia says:

    Excellent article, thanks Marcy.
    I wrote an executive summary of the DoJ report on my journal and noticed quite a few places where the report conflicted itself.

    I think this sums up the report the very best:
    Congratulations to the “members of the news media” who have been deemed the President’s official press. I hope you use your privileges wisely.

  22. art guerrilla says:

    here’s my take on it:
    the media, reporters, journalists, WHATEVER, are ALL proxies for US, the li’l peeps…
    meaning -for me- these proxies acting on our behalf get the protections ALL OF US should have in these issues…

    i.e. there SHOULD BE no distinction between our proxies doing the legwork we as individuals can’t do, and ourselves: BOTH cohorts receive maximum protection (whatever *that* means anymore) of our constitution and bill of rights…

    (not to mention -which most politicians and mediawhores never do- that we have ALL the rights in the world BEYOND those enumerated; just that *those* are the MINIMUM which we must defend to maintain our upright status as nekkid apes…)

    again, reporters AND us regular folks SHOULD BOTH have the rights that protect said reporting… there should be no special class above ‘citizen’, and ALL cohorts of ‘citizen’ enjoy ABSOLUTE protection, just as whatever level of formal journalists receive…

    art guerrilla
    aka ann archy

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