The Department of Justice is backing down from a battle with Google and The New York Times over leaks, and will no longer attempt to seize phone and email records of journalists reporting on the department.
In a statement on Saturday, a DOJ spokesperson announced that the nation’s top law enforcement agency would reverse its policy of aggressively pursuing some journalists’ phone and email history in order to uncover their sources.
“Consistent with the President’s direction, this Department of Justice—in a change to its longstanding practice—will not seek compulsory legal process in leak investigations to obtain source information from members of the news media doing their jobs," spokesperson Anthony Coley said.
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"The Department strongly values a free press, protecting First Amendment values, and is committed to taking all appropriate steps to ensure the independence of journalists.”
Saturday’s announcement marks a major policy reversal for a department that, over the past several years, attempted to use the courts to uncover the identities of possible sources who helped news organizations including the Times, The Washington Post, and CNN break major stories involving the DOJ.
The Times reported in recent days that the Trump administration had secretly seized the phone records of four of the paper’s reporters, and had attempted to gain access to their email logs in order to discover confidential sources who may have shared information with journalists.
The previous administration was aggressive in its attempts to legally force news organizations and tech companies to provide information that could out reporters’ sources, seizing phone records for reporters working at the Times, Washington Post, and CNN.
The department continued its pursuit of leakers under the new administration.The Times reported on Friday that the Biden team had imposed a gag order on both Google, which hosts the Times’ email accounts, and top leaders at the paper. The order forced the Times to remain silent about the department’s inquiry and legal fight for months until the order was lifted.
The disclosure of the continued leak hunts infuriated news organizations and press freedom advocates, who said the legal battles cut against Biden’s rhetorical support for press freedom.
“It’s a disgrace that the Justice Department repeatedly tried to secure journalists’ email records and obtained a gag order to keep its efforts under wraps,” ACLU senior staff attorney Patrick Toomey said in a statement on Friday. “Google did the right thing by resisting the request and fighting to inform the New York Times of the government’s demands for this sensitive information. The Biden administration needs to rein in the Justice Department and work with Congress to protect journalists and a free press.”
Before Saturday’s announcement, the new administration seemed to drop hints that it could reverse course.
When asked in May about the department's attempts to seize reporters' phone records, Biden said he did not support it, and believed the actions were “simply wrong."
"I will not let that happen,” he told CNN.
Coley said in a statement to news organizations in recent days that the Biden-era department had moved to delay enforcement of the gag order, and subsequently voluntarily withdrew the order "before any records were produced.”
And in a statement on Saturday, the White House indicated that it was unaware of the Justice department’s gag order, and opposed subpoenaing journalists’ phone and email logs.
“As appropriate given the independence of the Justice Department in specific criminal cases, no one at the White House was aware of the gag order until Friday night,” White House press secretary Jen Psaki said. “While the White House does not intervene in criminal investigations, the issuing of subpoenas for the records of reporters in leak investigations is not consistent with the President’s policy direction to the Department, and the Department of Justice has reconfirmed it will not be used moving forward.”
Still, some news organizations and press freedom advocates remained concerned about the rationale behind the the department's seizure of phone and email records. Times publisher A.G. Sulzberger said on Sunday that the paper was still intent on learning why Department of Justice pursued journalists' records in the first place.
"This is a welcome step to protecting the ability of the press to provide the public with essential information about what their government is doing," he said. "However, there is significantly more that needs to be done and we are still awaiting an explanation on why the Department of Justice moved so aggressively to seize journalists' records."
