U.S. Immigration & Customs Enforcement (ICE) recently announced a new policy that works to change how the issuing of administrative subpoenas to members of the media are decided upon.
The policy is called “Use of Compulsory Investigative Tools to Obtain Information or Records Related to the Journalistic Activities of Members of the News Media,” an ICE press release said. The measure is designed to properly balance the protection of national security interests, public safety and border security while also protecting freedom of the press.
“Under this new policy, we are taking steps to protect free speech and individuals’ rights under the First Amendment, while continuing to focus ICE resources on individuals who pose a threat to national security, public safety, and border security,” Tae D. Johnson, ICE's acting director, said in the release.
Compulsory investigative tools like subpoenas or court orders must receive approval by the ICE deputy director, the release said. If approval is given, the member of the media must receive proper notice before the tool may be used, unless notification would risk a threat “to the investigation, national security, or the life and safety of the individual.”
“The use of a compulsory investigative tool should only be approved where there is reason to believe that a crime has been committed and the information or records related to the journalistic activities of the member of the news media are essential to the investigation and following attempts by ICE to first obtain the essential information from alternative, non-media sources,” the release said. “ICE must also have made reasonable attempts to obtain the information or records voluntarily from the relevant member of the news media unless compelling reasons exist against taking this action.”
The release stated that the policy is also applicable to warrant applications under Federal Rule of Criminal Procedure 41 “to search premises or property where such a search may lead to information or records regarding the journalistic activities of a member of the news media.”
The policy also requires agents and officers to receive annual training on the policy requirements.
