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U.S. Immigration and Customs Enforcement (ICE) recently released a new policy addressing the use of “compulsory investigative tools” like subpoenas, court orders, and search warrants to obtain information from or about journalists. Congress directed ICE to do so after an abandoned effort by the agency in 2020 to force BuzzFeed News to disclose information that could identify the outlet’s confidential sources in a story about deportation policy.
Many are asking about the merits of the new ICE policy. There are good parts and there are bad parts. This post will analyze ICE’s new policy, partially in the context of the Department of Justice’s updated rules governing the same set of issues.
The new ICE policy is definitely an improvement over the status quo. However, that is not difficult because there previously was no law or policy that meaningfully constrained ICE from demanding information from journalists or their third-party communications providers.
At the same time, it is less protective than the new policy announced by Attorney General Merrick Garland in July 2021, which effectively bars the Justice Department from seeking any information from reporters, or their phone and email providers, except in the narrowest of circumstances (where, for instance, the reporter is suspected of a crime like insider trading or is acting as a foreign agent). The ICE policy retains the kind of discretion for the agency that the Justice Department abandoned after controversial revelations in the spring of 2021 that prosecutors investigating leaks in the Trump administration had secretly demanded the phone and email records of reporters at CNN, the New York Times, and the Washington Post.
In effect, with slight differences, the ICE policy tracks closely the Justice Department regulations that Garland’s July 2021 memorandum was meant to update. Those Justice Department regulations, codified at 28 C.F.R. § 50.10, are still in force so long as they don’t conflict with the new policy Garland announced.
The ICE policy includes three new important protections for the news media that are meant to accomplish two primary objectives: dissuading ICE from issuing improper subpoenas, court orders, or warrants; and ensuring high-level review of investigative steps—including arrests—involving the press:
- ICE deputy director preapproval. Any records demand or “preplanned” arrest of a member of the news media must be approved in advance by the ICE deputy director. And senior officials in the field must coordinate with high-level personnel at headquarters to ensure compliance with this requirement. The deputy director preapproval requirement is subject to the same kinds of exceptions present in the Justice Department’s 50.10 regulations—for instance, when the subject is acting as a foreign agent or so-called friendly subpoenas, where a journalist agrees to comply.
- Necessity and unavailability from non-media sources. The ICE deputy director may not approve the investigative step unless the records are “essential” to an investigation and ICE has made “all reasonable attempts” to get the records from “alternative, non-media sources.” “Essential” is undefined in the ICE policy, though the analogous language in the Justice Department’s 50.10 policy in the criminal context is “essential to a successful investigation or prosecution” and, in the civil context, “essential to the successful completion of an investigation or litigation in a case of substantial importance.” The Justice Department policy also requires that records demands be tailored to avoid obtaining “peripheral, nonessential, or speculative information.”
- Advance notice. The ICE policy largely mirrors the notice requirement in the Justice Department’s 50.10 guidelines, requiring that the affected member of the news media be notified before ICE takes any steps to enforce a records demand unless “doing so would pose a clear and substantial risk to the investigation, national security, or the life and safety of a person.” (Though the Justice Department text uses different modifiers than “clear and substantial” with respect to the national security and life-and-limb exceptions, permitting delayed notice when it would pose a “clear and substantial threat to the integrity of the investigation, risk grave harm to national security, or present an imminent risk of death or serious bodily harm.”)
A few high-level takeaways—both good and bad—are evident at first review.
Protections for Confidential Sources
The new policy contains relatively constructive safeguards for confidential source identity information. Section 2.2 of the ICE policy expressly states that ICE may not use investigative tools to “seek information about the confidential sources of members of the news media,” with two exceptions.
The first is if there is a “clear and articulable risk of death or serious bodily harm to an individual,” and “no reasonable alternative exists.” Any exception of this kind could be subject to abuse if investigators overhype the threat, but, if this is read to require applicants for compulsory process to explain in some detail why the risk is clear, it seems like a limited exception.
The second is when there is a risk of “significant harm to national security” and “no reasonable alternative exists.” That’s too broad. ICE has numerous enforcement authorities related to national security that could allow the agency to draw tenuous links between invasive investigative practices and national security aims. These authorities include, among others, the ability to remove individuals deemed to pose a threat to national security, counter-proliferation, sanctions enforcement, and counterterrorism (just a skim of the 2021 annual report gives one a sense of the panoply of investigations and enforcement operations in service of ICE’s national security responsibilities).
National security cases tend to be where robust protections for the press are most needed, which is why the new Justice Department policy makes clear that the receipt and possession of leaked classified information isn’t a crime that would trigger a narrow exception to the new rule. Additionally, “significant” is an overly lax term. In the Justice Department guidelines, for comparison, the attorney general can approve a delay in notifying the affected journalist or outlet that records have been sought only when notification would present a “grave” risk to national security.
The Parameters of Journalistic Activity
The definition of “journalistic activity” in Section 3.4 of the ICE policy is quite strong, with a caveat below. It focuses heavily on function, stating that journalism “can generally be distinguished from other forms of communication by its purpose—which is ultimately to provide people with new, verified information about current events and issues—and adherence to professional standards or practices.” The reference to purpose is helpful in that it requires an inquiry into what an individual is actually doing, as opposed to, say, where one is employed.
The “journalistic activity” definition also includes a list of various indicators of journalism, which is also positive in that it is explicitly not exhaustive. That said, two of those indicators, Sections 3.5(4) and (6), could be read to carve out opinion journalism, which may be of concern.
The important caveat to that cautious seal-of-approval is the reference to “professional standards or practices.” In other contexts, public officials have made assertions that something isn’t “journalism” because of purported ethical lapses, which would become an issue here as well.
The policy would also benefit from stricter consultation requirements. Section 5.4 states that when there is a “reasonable question regarding whether an individual is a member of the news media or information or records related to journalistic activity are at issue for purposes of this policy,” the relevant ICE element must consult with the ICE Office of Regulatory Affairs and Policy (ORAP). The “reasonable question” standard gives the relevant elements too much discretion to avoid ORAP consultation. The language should be something akin to “when there’s any doubt.”
The policy also importantly makes clear that investigative efforts implicating the press are not routine. It states that the “use of compulsory investigative tools to obtain information or records related to the journalistic activities of members of the news media is an extraordinary act and not a standard investigative practice.” In addition, Section 5.5 mandates annual training for officers and agents on the policy’s requirements. (That requirement was directed by Congress, but it’s great.)
One concern that immediately stands out about the new policy is that the high-level approval it requires is far too low. Even in those few cases where compulsory records demands involving the news media are still permitted under the Justice Department policy, the attorney general is the approving officer. Congress gave ICE discretion to name the preapproving official, though it did say it preferred it be the ICE director. But there is no reason approvals shouldn’t be elevated to the cabinet level, as it is at the Justice Department.
The policy would also permit investigative steps involving the news media without preapproval to prevent acts that are “reasonably likely to cause significant and articulable harm to national security, and obtaining preapproval from the ICE deputy director is not reasonably possible in light of the exigency.” For many of the reasons discussed above with respect to the exception to the prohibition on seeking confidential source information, that is also unduly broad.
Scope of Application
Critically, the new policy applies to ICE’s investigative arm, Homeland Security Investigations—the most consequential law enforcement agency you’ve never heard of. As the second largest federal investigative agency after the FBI, it has expansive authorities to investigate a huge array of crimes involving customs and immigration law—everything from drugs and human trafficking to money laundering and art theft. That’s a definite positive.
As written, the policy does not apply to Customs and Border Protection (CBP)—the largest federal law enforcement agency, which has almost 60,000 employees. CBP has a slightly different mission—basically to enforce laws governing the what, when, why, and how of things crossing U.S. borders. But there have been numerous reports in recent years of journalists being subjected to improper CBP scrutiny. This policy should be Homeland Security-wide to ensure it would apply to CBP activities. And, for that reason too, preapprovals should be elevated to the secretary.
Alignment With Congress’s Aims
Perhaps the biggest knock against ICE’s new policy is that, ultimately, it isn’t what Congress asked for. The congressional directive expressly cites the updated July 2021 Justice Department policy, which was meant to bar records seizures concerning the news media except in narrow circumstances (again, cases where the reporter is suspected of something like insider trading). The committee report further directs ICE to develop a policy “analogous to the [Justice Deparment] policy,” which this isn’t. This is analogous to the Justice Department’s 50.10 guidelines as they exist in the Code of Federal Regulations, but not as they were modified by Garland’s July 2021 memorandum.
Further, it’s worth emphasizing that these policies are internal and can be changed as leadership at ICE changes. Given that the status quo is no protection, implementing such a policy at ICE is a net positive even if the protections are not as strong as at the Justice Department. But, as with the Justice Department policies, they need to be made durable through statute.
Disclaimer: The Reporters Committee for Freedom of the Press, where I work, helps coordinate the News Media Dialogue Group, a roundtable of news media representatives and high-level officials at the Department of Justice that consults on its guidelines. While we weren’t involved in the discussions over this policy, we stand ready to serve a similar role in improving the ICE directive going forward.