U.S. Immigration and Customs Enforcement 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 whether the new ICE policy is a good one. The frustratingly lawyerly answer is emphatically yes and emphatically no.
It’s 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 (and unfortunately other elements of the Department of Homeland Security are not covered; more on that below).
At the same time, it is less protective than the new policy announced by Attorney General Merrick Garland last July, which effectively bars members of the Department of Justice from seeking any information from reporters, or their phone and email providers, except in the narrowest of circumstances. The ICE policy retains the kind of discretion 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 a few bells and whistles, the ICE policy tracks closely the Justice Department regulations that Garland’s July 2021 memorandum was meant to update. Those 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 important protections for the news media that are meant to dissuade ICE from issuing improper subpoenas, court orders or warrants, and to ensure high-level review of any 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. 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.
- 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.”
- 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 DOJ 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.”)
We’re still examining the policy and its implications, but a few high-level takeaways — both good and bad — are evident at first review.
The good
The new policy contains decent language around explicit protections 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.” That could be subject to abuse, but read in isolation it’s pretty narrow. The second, however, is when there is a risk of “significant harm to national security” and “no reasonable alternative exists.” As I’ll discuss in a minute, that is less than ideal.
The definition of “journalistic activity” in section 3.4 of the ICE policy also strikes me as 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 caveat is that reference to “professional standards or practices,” as public officials often try to use what they claim to be ethical lapses to say something isn’t “journalism,” but the reference to “purpose” is still helpful. It 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 policy also 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 was directed by Congress, but it’s great.)
Lastly, the new policy also 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.
The bad
One concern that immediately stands out about the new policy is that the high-level approval it requires is way 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 secretary, a step that could also limit blowback for the department as a whole.
Also, while HSI is the second largest federal investigative agency, Customs and Border Protection is by far the largest federal law enforcement agency in general, with 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 DHS-wide to ensure it would apply to CBP activities. As written, it does not.
There are also two “national security” carve-outs that raise concerns. As I mentioned before, the policy helpfully has explicit protections for information that could disclose the identity of a confidential source. But it exempts cases where there is a risk of “significant harm to national security” and where “no reasonable alternative exists.” That’s too loose and unspecific a formulation. 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.” That is similarly unduly broad.
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. “Reasonable question” gives the relevant elements too much discretion to avoid ORAP consultation. The standard should be something akin to “when there’s any doubt.”
And ultimately, this isn’t what Congress asked for. The directive to ICE is on page 47 of this Senate appropriations committee report. It expressly cites the updated July 2021 Justice Department policy, which was meant to bar records seizures concerning the news media except in narrow circumstances, like when the journalist is suspected of normal crimes not connected to journalistic activity (Garland’s memorandum gives the example of insider trading). The committee report further directs ICE to develop a policy “analogous to the DOJ 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 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 Department of Justice. But, as with the DOJ policies, they need to be made durable through statute.
Finally, I should note that 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.
Leave a Reply