Holder Tightens Rules on Getting Reporters’ Data

A White House spokesman said that President Obama supported the Justice Department’s changes as well as its call, at the end of a report on the revisions, to more often find ways other than criminal investigations to deal with leaks of classified information. Under Mr. Obama, prosecutors have filed charges in seven leak-related cases to date, compared with three under all previous presidents combined.

“There are circumstances in which leaks are better addressed through administrative means, such as withdrawal of security clearances or imposition of other sanctions,” said Matt Lehrich, the White House spokesman. “The president agrees with the Justice Department’s recommendation, and has directed his team to explore how the administration could more effectively use alternatives in appropriate cases.”

In a six-page report, Mr. Holder outlined changes to the Justice Department’s investigative guidelines that would prevent the Federal Bureau of Investigation from portraying a reporter as a co-conspirator in a criminal leak as a way to get around a legal bar on secret search warrants for reporting materials.

The revisions would also make it harder — though not impossible — for prosecutors to obtain a journalist’s records from telephone companies without advance notice. The notifications would give the news organizations a chance to contest the request in court.

“The Department of Justice is firmly committed to ensuring our nation’s security, and protecting the American people, while at the same time safeguarding the freedom of the press,” Mr. Holder said. “These revised guidelines will help ensure the proper balance is struck when pursuing investigations into unauthorized disclosures.”

Investigators’ targeting of the communications records of Associated Press and Fox News reporters in separate investigations came to light in May, setting off a furor among journalists and in Congress about the administration’s increasingly aggressive record on leak inquiries.

Two months ago, Mr. Obama gave Mr. Holder a July 12 deadline to review the rules and make recommendations. Mr. Holder held a series of meetings with newsroom leaders and lawyers for media companies, along with lawmakers and First Amendment scholars, in May and June, and briefed Mr. Obama about the changes at the White House on Friday morning.

Several of them directly addressed controversies from the earlier disclosures. For example, a 2010 affidavit that came to light in May sought a warrant for e-mails from the Google account of James Rosen of Fox News in which he corresponded with a State Department analyst who was suspected of leaking classified information.

Congress has generally forbidden search warrants for journalists’ work materials, but the statute makes an exception if the reporter is suspected of committing a crime. An F.B.I. agent wrote that Mr. Rosen qualified for that exception because he had violated the Espionage Act by seeking government secrets to report.

No American journalist has ever been prosecuted for gathering and publishing classified information, so the language raised the prospect that the Obama administration was taking its leak crackdown to a new level. The administration insisted that it never intended to charge Mr. Rosen and that it had portrayed him as a criminal merely to get around the prohibition on accessing his e-mails.

The revision to the guidelines would bar such a tactic by saying that the “suspect exception” may only be invoked “when the member of the news media is the focus of the criminal investigation for conduct going beyond ordinary news-gathering activities.”

Search warrants invoking the exception, the revision adds, will not be allowed “if the sole purpose is the investigation of a person other than a member of the news media.”

Also, the new guidelines will require the attorney general to sign off on invoking the exception. Previously, a deputy assistant attorney general could do so.