About Those New DOJ Guideline on Reporters’ Records: There’s Less Here Than Meets the Eye

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On Friday, Attorney General Eric Holder issued a new set of guidelines designed to make it harder for law enforcement officials to seize the records of journalists:

Among other things, the rules create a presumption that prosecutors generally will provide advance notice to the news media when seeking to obtain their communications records….The rules also address a law forbidding search warrants for journalists’ work materials, except when the reporter is a criminal suspect. It says that the exception cannot be invoked for conduct based on “ordinary news-gathering activities.”

….The rules cover grand jury subpoenas used in criminal investigations. They exempt wiretap and search warrants obtained under the Foreign Intelligence Surveillance Act and “national security letters,” a kind of administrative subpoena used to obtain records about communications in terrorism and counterespionage investigations.

But Marcy Wheeler points out that most of the DOJ leak investigations that prompted media outrage last year and led to these new rules are, in fact, related to national security. And NSLs have the least oversight of any form of subpoena: they can be issued by just about anyone, and require no approval from a court.

Does this mean, as Wheeler pungently puts it, that these new guidelines are “worth approximately shit” in any leak investigation that’s actually likely to take place? I’m not sure about that. You can’t get a wiretap with an NSL, for example. Still, it certainly seems to be a Mack-truck-sized loophole in these new rules. There’s less here than meets the eye.

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SIX TRUTHS

Reclaiming power from those who abuse it often starts with telling the truth. And in "This Is How Authoritarians Get Defeated," MoJo's Monika Bauerlein unpacks six truths to remember during the homestretch of an election where democracy, truth, and decency are on the line.

Truth #1: The chaos is the point.

Truth #2: Team Reality is bigger than it seems.

Truth #3: Facebook owns this.

Truth #4: When we go to work, we're in the fight.

Truth #5: It's about minority rule.

Truth #6: The only thing that can save us is…us.

Please take a moment to see how all these truths add up, because what happens in the weeks and months ahead will reverberate for at least a generation and we better be prepared.

And if you think journalism like Mother Jones'—that calls it like it is, that will never acquiesce to power, that looks where others don't—can help guide us through this historic, high-stakes moment, and you're able to right now, please help us reach our $350,000 goal by October 31 with a donation today. It's all hands on deck for democracy.

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