9-13.000 - Obtaining Evidence

9-13.001 - Electronic Recording of Statements

This policy establishes a presumption that the Federal Bureau of Investigation (FBI), the Drug Enforcement Administration (DEA), the Bureau of Alcohol, Tobacco, Firearms, and Explosives (ATF), and the United States Marshall Service (USMS) will electronically records statements made by individuals in their custody in the circumstances set forth below.

This policy also encourages agents and prosecutors to consider electronic recording in investigative or other circumstances where the presumption does not apply.  The policy encourages agents and prosecutors to consult with each other in such circumstances.

I.  Presumption of Recording.  There is a presumption that the custodial statement of an individual in a place of detention with suitable recording equipment, following arrest but prior to initial appearance, will be electronically recorded, subject to the exceptions defined below.  Such custodial interviews will be recorded without the need for supervisory approval.

1. Electronic recording.  This policy strongly encourages the use of video recording to satisfy the presumption.  When video recording equipment considered suitable under agency policy is not available, audio recording may be utilized. 
2. Custodial interviews.  The presumption applies only to interviews of persons in FBI, DEA, ATF or USMS custody.  Interviews in non-custodial settings are excluded from the presumption.
3. Place of detention.  A place of detention is any structure where persons are held in connection with federal criminal charges where those persons can be interviewed.  This includes not only federal facilities, but also any state, local, or tribal law enforcement facility, office, correctional or detention facility, jail, police or sheriff=s station, holding cell, or other structure used for such purpose.  Recording under this policy is not required while a person is waiting for transportation, or is en route, to a place of detention.
4. Suitable recording equipment.  The presumption is limited to a place of detention that has suitable recording equipment.  With respect to a place of detention owned or controlled by FBI, DEA, ATF, or USMS, suitable recording equipment means:   
   
   (i) an electronic recording device deemed suitable by the agency for the recording of interviews that, 
   
   (ii) is reasonably designed to capture electronically the entirety of the interview. Each agency will draft its own policy governing placement, maintenance and upkeep of such equipment, as well as requirements for preservation and transfer of recorded content.  

With respect to an interview by FBI, DEA, ATF, or USMS in a place of detention they do not own or control, but which has recording equipment, FBI, DEA, ATF, or USMS will each determine on a case by case basis whether that recording equipment meets or is equivalent to that agency’s own requirements or is otherwise suitable for use in recording interviews for purposes of this policy.  

5. Timing.   The presumption applies to persons in custody in a place of detention with suitable recording equipment following arrest but who have not yet made an initial appearance before a judicial officer under Federal Rule of Criminal Procedure 5.
6. Scope of offenses.  The presumption applies to interviews in connection with all federal crimes.  
7. Scope of recording.  Electronic recording will begin as soon as the subject enters the interview area or room and will continue until the interview is completed.   
8. Recording may be overt or covert.  Recording under this policy may be covert or overt.   Covert recording constitutes consensual monitoring, which is allowed by federal law.  See 18 U.S.C. §2511(2)(c).  Covert recording in fulfilling the requirement of this policy may be carried out without constraint by the procedures and approval requirements prescribed by other Department policies for consensual monitoring.  

II.  Exceptions to the Presumption.   A decision not to record any interview that would otherwise presumptively be recorded under this policy must be documented by the agent as soon as practicable.  Such documentation shall be made available to the United States Attorney and should be reviewed in connection with a periodic assessment of this policy by the United States Attorney and the Special Agent in Charge or their designees.

1. Refusal by interviewee.  If the interviewee is informed that the interview will be recorded and indicates that he or she is willing to give a statement but only if it is not electronically recorded, then a recording need not take place.  
2. Public Safety and National Security Exception.  Recording is not prohibited in any of the circumstances covered by this exception and the decision whether or not to record should wherever possible be the subject of consultation between the agent and the prosecutor.  There is no presumption of electronic recording where questioning is done for the purpose of gathering public safety information under New York v. Quarles.  The presumption of recording likewise does not apply to those limited circumstances where questioning is undertaken to gather national security-related intelligence or questioning concerning intelligence, sources, or methods, the public disclosure of which would cause damage to national security.  
3. Recording is not reasonably practicable. Circumstances may prevent, or render not reasonably practicable, the electronic recording of an interview that would otherwise be presumptively recorded. Such circumstances may include equipment malfunction, an unexpected need to move the interview, or a need for multiple interviews in a limited timeframe exceeding the available number of recording devices. 
4. Residual exception.  The presumption in favor of recording may be overcome where the Special Agent in Charge and the United States Attorney, or their designees, agree that a significant and articulable law enforcement purpose requires setting it aside.  This exception is to be used sparingly.

III.  Extraterritoriality. The presumption does not apply outside of the United States. However, recording may be appropriate outside the United States where it is not otherwise precluded or made infeasible by law, regulation, treaty, policy, or practical concerns such as the suitability of recording equipment.  The decision whether to record an interview - whether the subject is in foreign custody, U.S. custody, or not in custody - outside the United States should be the subject of consultation between the agent and the prosecutor, in addition to other applicable requirements and authorities.

IV. Administrative Issues.  

1. Training.  United States Attorneys’ offices and field offices of each agency should consider  collaborating if and as needed to provide periodic training for agents and prosecutors on best practices associated with electronic recording of interviews. 
2. Assignment of responsibilities. The investigative agencies will bear the cost of acquiring and maintaining, in places of detention they control where custodial interviews occur, recording equipment in sufficient numbers to meet expected needs for the recording of such interviews.  Agencies will pay for electronic copies of recordings for distribution pre-indictment. Post-indictment, the United States Attorneys’ offices will pay for transcripts of recordings, as necessary.

[added December 2017]

9-13.002 - Storage of Evidence in Criminal Matters and Cases

Department prosecuting components generally should not take custody of physical evidence in criminal matters and cases, as evidence should remain in the custody of the investigating agency unless otherwise required by law or when the evidence is obtained through the mutual legal assistance channel. However, when a prosecuting component is authorized to store physical evidence or sensitive high-risk physical evidence, such as in a specialized unit or lab, it must follow applicable Department policies and procedures for storing the evidence. See, e.g., JM 3-15.130  (United States Attorneys’ Offices).

[added December 2024]

9-13.100  Use of Body-Worn Cameras by Task Force Officers

The Department of Justice permits the use of body-worn cameras (BWCs) by deputized task force officers (TFOs) on federal task forces.  This policy provides the parameters for the use of BWCs by TFOs to the extent that a state or local law enforcement agency[1] requires their use by its officers during federal task force operations. 

1. Use of Body-Worn Cameras During Federal Task Force Operations 

TFOs employed by a law enforcement agency that mandates the use of BWCs on federal task forces may wear and activate their recording equipment for the purpose of recording their actions during task operations[2] only during: (1) a planned attempt to serve an arrest warrant or other planned arrest; or, (2) the execution of a search warrant.[3]  There are several exceptions:

• TFOs are prohibited from recording:  (1) undercover personnel; (2) confidential informants or confidential sources; (3) on-scene witness interviews prior to or after the operation; (4) personnel using specialized or sensitive investigative techniques or equipment; or (5) on-scene actions by any non-law enforcement persons who are assisting law enforcement personnel prior to or after the operation.
   
• TFOs are prohibited from activating their BWC if the TFO is using specialized or sensitive investigative techniques, operating in a sensitive area, or working in an undercover or covert status on behalf of the federal task force or federal agency as determined by the federal agency sponsoring the task force.    
   
• Subject to the discretion of the federal agency sponsoring the task force, TFOs generally shall not use their BWCs to record any activities related to investigations involving public corruption, medical facilities, national security, or other sensitive investigations.  The Department’s policy of permitting the limited use of BWCs on task forces does not apply to highly specialized or sensitive operations or groups as determined by the federal agency sponsoring the task force.
   

2. Body-Worn Camera Recordings are Federal Records and Property of DOJ 

All TFO BWC recordings made during federal task force operations, including such recordings retained by the TFO’s parent agency and/or in the possession of any third party engaged by the parent agency to store or process BWC recordings, shall be deemed federal records of the Department and the federal agency sponsoring the task force pursuant to the Federal Records Act.  TFO BWC recordings are controlled by, and the property of, the Department and will be retained and managed by the federal agency sponsoring the task force.  These records cannot be disseminated without the written permission of the Department, subject to the following exceptions:

• Internal Dissemination:  The TFO’s parent agency is authorized to use TFO BWC recordings for internal investigations of its personnel consistent with the parent agency’s policies and procedures, but may not disseminate the BWC recording outside the parent agency or for public release without the written permission of the Department. 
   
• Expedited Public Release:  If TFO BWC recording(s) depict conduct committed solely by a TFO resulting in serious bodily injury or death of another, the TFO’s parent agency shall notify the sponsoring federal agency and the United States Attorney as early as possible if it desires to publicly release the TFO’s BWC recording(s).  The sponsoring federal agency and the United States Attorney will expeditiously review the recording(s) and provide official concurrence with public release as soon as practical, unless there are specific and compelling circumstances justifying an objection to public release that cannot be resolved by redaction or other means.  Upon official concurrence, the TFO’s parent agency may immediately release the recording(s) with any agreed-upon redactions, giving as much advance notice as possible to the sponsoring federal agency and United States Attorney as to the time and manner of its release.   
   

To view the full policy for additional guidance on these matters, see the October 29, 2020, Use of Body-Worn Cameras by Federally Deputized Task Force Officers Policy.

[added October 2020]

9-13.150 – Processing Ballistics Evidence in Connection with Criminal Investigations

The National Integrated Ballistic Information Network (NIBIN) is an essential gun intelligence tool. Operated by ATF, NIBIN enables federal, state, local, Tribal, and territorial investigators to match fired cartridge casings to the guns from which they were fired and link shooting incidents. NIBIN technology has proven its value by generating investigative leads essential to solving gun crimes and reducing violence.

The effectiveness of NIBIN is dependent on the comprehensive collection of fired casings, the prompt test-firing of recovered firearms, and the timely entry of such ballistics evidence into the NIBIN system. To enhance NIBIN's effectiveness, ATF has engaged in extensive outreach and training to federal law enforcement and our state, local, Tribal, and territorial law enforcement partners, and these efforts have resulted in significant progress. Entry of ballistic data into NIBIN has steadily increased, as has the number of investigative leads the system generates. 

1.  Requirement to Enter Evidence into NIBIN

All DOJ agents and investigators are required to enter ballistics evidence in accordance with Department guidance and ATF procedures into NIBIN, including all firearms and fired cartridge casings recovered in connection with criminal investigations, including during Department-funded task force operations.

This requirement applies regardless of whether a Department component or a state, local, Tribal, or territorial law enforcement partner takes possession of the firearm or fired cartridge casing. For any agency without a readily accessible NIBIN acquisition site, ATF can assist by providing acquisition services at select ATF Field Divisions, as well as the three national ATF NIBIN lab sites.

To the extent logistical barriers are identified that complicate compliance with this requirement, components should contact the Office of the Deputy Attorney General for assistance.

2.  Timeliness of Evidence Entry 

DOJ agents and investigators must submit ballistics evidence for entry into NIBIN no later than 14 days after a firearm or fired cartridge casing is recovered, absent unexpected and extenuating circumstances.  DOJ agents and investigators should strive to enter ballistics data into NIBIN within 48 hours of recovery.

[Added January 2025]

9-13.200 - Communications with Represented Persons

Department attorneys are governed in criminal and civil law enforcement investigations and proceedings by the relevant rule of professional conduct that deals with communications with represented persons. 28 U.S.C. Section 530B. In determining which rule of professional conduct is relevant, Department attorneys should be guided by 28 C.F.R. Part 77 (1999). Department attorneys are strongly encouraged to consult with their Professional Responsibility Officers or supervisors—and, if appropriate, the Professional Responsibility Advisory Office—when there is a question regarding which is the relevant rule or the interpretation or application of the relevant rule.

[updated January 2020]

9-13.300 - Polygraphs—Department Policy

The Department opposes all attempts by defense counsel to admit polygraph evidence or to have an examiner appointed by the court to conduct a polygraph test. Government attorneys should refrain from seeking the admission of favorable examinations that may have been conducted during the investigatory stage for the following reasons.

Though certain physiological reactions such as a fast heartbeat, muscle contraction, and sweaty palms are believed to be associated with deception attempts, they do not, by themselves, indicate deceit. Anger, fear, anxiety, surprise, shame, embarrassment, and resentment can also produce these same physiological reactions. S. Rep. No. 284, 100th Cong., 2d Sess. 3-5 (1988). Moreover, an individual is less likely to produce these physiological reactions if he is assured that the results of the examination will not be disclosed without his approval. Given the present theoretical and practical deficiencies of polygraphs, the government takes the position that polygraph results should not be introduced into evidence at trial. On the other hand, in respect to its use as an investigatory tool, the Department recognizes that in certain situations, as in testing the reliability of an informer, a polygraph can be of some value. Department policy therefore supports the limited use of the polygraph during investigations. This limited use should be effectuated by using the trained examiners of the federal investigative agencies, primarily the FBI, in accordance with internal procedures formulated by the agencies. E.g., R. Ferguson, Polygraph Policy Model for Law Enforcement, FBI Law Enforcement Bulletin, pages 6-20 (June 1987). The case agent or prosecutor should make clear to the possible defendant or witness the limited purpose for which results are used and that the test results will be only one factor in making a prosecutive decision. If the subject is in custody, the test should be preceded by Miranda warnings. Subsequent admissions or confessions will then be admissible if the trial court determines that the statements were voluntary. Wyrick v. Fields, 459 U.S. 42 (1982); Keiper v. Cupp, 509 F.2d 238 (9th Cir. 1975).

[updated January 2020]

9-13.400 Obtaining Information From, or Records of, Members of the News Media; and Questioning, Arresting, or Charging Members of the News Media

Because a free and independent press is vital to the functioning of our democracy, the Department has long employed procedural protections to restrict the use of compulsory legal process to obtain information from or records of members of the news media.  The Department’s News Media Policy (“Policy”) sets forth these protocols.  The Policy was substantially revised in October 2022 and is codified at 28 C.F.R. § 50.10.

Part A of this Justice Manual section provides a paragraph-by-paragraph review of 28 C.F.R. § 50.10, with guidance, interpretation, and instructions for Department personnel seeking authorization for various actions governed by the Policy.  Parts B-D provide additional information and guidance about Policy implementation.  Part E lists common news media-related matters and circumstances and identifies whether and when mandatory consultation with the Criminal Division, at a minimum, is required.

To satisfy the mandatory consultation requirements identified and summarized in Part E, members of the Department must submit to the Criminal Division’s Office of Enforcement Operations (OEO), through its Policy and Statutory Enforcement Unit (PSEU), a memorandum describing the relevant facts and addressing the relevant considerations.  Members of the Department may contact PSEU with any questions via e-mail at pseu@usdoj.gov or by calling 202-305-4023.  Members of the Department may not employ the investigative tool or take the investigative action at issue until the Criminal Division has responded in writing.

Because application of the Policy, including consulting with the Criminal Division and obtaining all required authorizations, requires careful consideration of critical law enforcement interests and impact on the freedom of the press, the review and approval process is often time intensive.  Accordingly, to ensure appropriate consideration, members of the Department should submit requests for authorization or consultation pursuant to the Policy as soon as possible before the anticipated use of the covered investigative tool or action.

A. Guidance on Application of 28 C.F.R. § 50.10

Part A reviews each paragraph of 28 C.F.R. § 50.10, starting first with the regulatory text (in italics) and followed by additional guidance, interpretation, or instructions (in plain text).  For ease of reference, a table of contents for 28 C.F.R. § 50.10 appears below.

(a) Statement of principles;

(b) Scope and definitions;

(c) Compulsory legal process for the purpose of obtaining information from or records of a member of the news media acting within the scope of newsgathering;

(d) Compulsory legal process for the purpose of obtaining information from or records of a member of the news media not acting within the scope of newsgathering;

(e) Matters where there is a close or novel question as to the person's or entity's status as a member of the news media or whether the member of the news media is acting within the scope of newsgathering;

(f) Compelled testimony;

(g) Exhaustion;

(h) Standards for authorizing compulsory legal process;

(i) Voluntary questioning and compulsory legal process following consent by a member of the news media;

(j) Notice of compulsory legal process to the affected member of the news media;

(k) Non-disclosure orders;

(l) Exigent circumstances involving risk of death or serious bodily harm;

(m) Arresting or charging a member of the news media;

(n)  Applications for authorizations under this section;

(o) Filter protocols;

(p) Safeguarding;

(q) Privacy Protection Act;

(r) Anti-circumvention;

(s) Failure to comply;

(t) General provision.

(a) Statement of principles. [28 C.F.R. § 50.10(a)]

(1) A free and independent press is vital to the functioning of our democracy.  Because freedom of the press can be no broader than the freedom of members of the news media to investigate and report the news, the Department’s policy is intended to provide protection to members of the news media from certain law enforcement tools and actions, whether criminal or civil, that might unreasonably impair newsgathering.  The policy is not intended to shield from accountability members of the news media who are subjects or targets of a criminal investigation for conduct outside the scope of newsgathering.

(2) The Department recognizes the important national interest in protecting journalists from compelled disclosure of information revealing their sources, sources they need to apprise the American people of the workings of their Government.  For this reason, with the exception of certain circumstances set out in this section, the Department of Justice will not use compulsory legal process for the purpose of obtaining information from or records of members of the news media acting within the scope of newsgathering.

(3) In determining whether to seek, when permitted by this policy, information from or records of members of the news media, the Department must consider several vital interests: protecting national security, ensuring public safety, promoting effective law enforcement and the fair administration of justice, and safeguarding the essential role of a free press in fostering Government accountability and an open society, including by protecting members of the news media from compelled disclosure of information revealing their sources.  These interests have long informed the Department’s view that the use of compulsory legal process to seek information from or records of non-consenting members of the news media constitutes an extraordinary measure, not a standard investigatory practice.  

This Policy is not intended to extend special protections to members of the news media who are subjects or targets of a criminal investigation, or are parties to a civil investigation, for conduct outside the scope of newsgathering.  The use of compulsory legal process to obtain information from, or records of, a member of the news media who is the subject or target of an investigation, or a party to a civil investigation, and suspected of having committed an offense or violation not within the scope of newsgathering – for example, an offense involving suspected child sexual abuse material – would not be considered an “extraordinary measure.”

(b) Scope and definitions. [28 C.F.R. § 50.10(b)]

(1) Covered persons and entities.  The policy in this section governs the use of certain law enforcement tools and actions, whether criminal or civil, to obtain information from or records of members of the news media.

This Policy extends protections only to any person or entity who is a member of the news media.  In determining under this Policy whether a person or entity is a member of the news media for purposes of this Policy and therefore qualifies for the Policy’s protections, the Department broadly evaluates the totality of the circumstances, including, among other things, the frequency of the person’s or entity’s reporting and whether the person or entity brings information to the attention of the public, engages in newsgathering, has independent sources, holds press credentials, is employed by a member of the news media, and/or is widely identified as a journalist or reporter.  No single characteristic is dispositive of the Department’s analysis, and the relevant considerations may evolve over time to reflect changes in newsgathering and media practices.  The Department does not consider the ideology or viewpoint of a person or entity, or of its reporting, when determining whether that person or entity qualifies as a member of the news media for purposes of this Policy. 

When there is any question regarding whether a person or entity is a member of the news media, members of the Department must consult with the Criminal Division before using an investigative tool or taking an action that is covered by this Policy (hereafter, a “covered investigative tool” and “covered action,” respectively).  Except as otherwise provided in 28 C.F.R. § 50.10(e)(1) (when there is a close or novel question), the determination whether a person or entity is a member of the news media for purposes of this Policy must be approved by a Deputy Assistant Attorney General for the Criminal Division.  This determination is an internal deliberative matter.  As set forth at 28 C.F.R. § 50.10(t), it does not create any right or benefit, substantive or procedural, enforceable at law or in equity by any party against the United States, its departments, agencies, or entities, its officers, employees, or agents, or any other person. 

A person’s or entity’s status as a member of the news media may vary over time.  For purposes of this Policy, the relevant considerations are whether the person or entity was a member of the news media either at the time of the activity underlying the requested investigative action or at the time of the request.  Whenever there is a question regarding a person’s or entity’s status as a member of the news media at any relevant time, members of the Department must consult with the Criminal Division before using a covered investigative tool or taking a covered action.

(2) Definitions.

(i) Compulsory legal process consists of subpoenas, search warrants, court orders issued pursuant to 18 U.S.C. 2703(d) and 3123, interception orders issued pursuant to 18 U.S.C. 2518, civil investigative demands, and mutual legal assistance treaty requests - regardless of whether issued to members of the news media directly, to their publishers or employers, or to others, including third-party service providers of any of the forgoing, for the purpose of obtaining information from or records of members of the news media, and regardless of whether the compulsory legal process seeks testimony, physical or electronic documents, telephone toll or other communications records, metadata, or digital content.

All types of subpoenas, including administrative subpoenas, constitute compulsory legal process. 

This Policy is not intended to impose more onerous requirements on mutual legal assistance treaty (MLAT) requests than on the equivalent domestic investigative measure.  Accordingly, when an MLAT request is utilized solely to request questioning on a voluntary basis, such a request should be evaluated under 28 C.F.R. § 50.10(i).

Compulsory legal process covered under this Policy also includes compulsory legal process issued by members of the Department on behalf of another Executive Branch department or agency, regardless of whether the Department has initiated a corresponding civil or criminal matter.

(ii) Newsgathering is the process by which a member of the news media collects, pursues, or obtains information or records for purposes of producing content intended for public dissemination. 

(A) Newsgathering includes the mere receipt, possession, or publication by a member of the news media of Government information, including classified information, as well as establishing a means of receiving such information, including from an anonymous or confidential source.

(B)  Except as provided in paragraph (b)(2)(ii)(A) of this section, newsgathering does not include criminal acts committed in the course of obtaining information or using information, such as: breaking and entering; theft; unlawfully accessing a computer or computer system; unlawful surveillance or wiretapping; bribery; extortion; fraud; insider trading; or aiding or abetting or conspiring to engage in such criminal activities, with the requisite criminal intent.

When there is a question as to whether a member of the news media is acting within the scope of newsgathering, members of the Department must consult with the Criminal Division before using a covered investigative tool or taking a covered action.  Except as otherwise provided in 28 C.F.R. § 50.10(e)(2) (when there is a close or novel question), the determination whether a member of the news media is acting within the scope of newsgathering for purposes of this Policy must be approved by a Deputy Assistant Attorney General for the Criminal Division. 

(3) Exclusions. 

(i) The protections of the policy in this section do not extend to any person or entity where there is a reasonable ground to believe the person or entity is: 

(A) A foreign power or agent of a foreign power, as those terms are defined in section 101 of the Foreign Intelligence Surveillance Act of 1978 (50 U.S.C. 1801);

(B)  A member or affiliate of a foreign terrorist organization designated under section 219(a) of the Immigration and Nationality Act (8 U.S.C. 1189(a));

(C)  Designated as a Specially Designated Global Terrorist by the Department of the Treasury under Executive Order 13224 of September 23, 2001, 3 CFR, 2001 Comp., p. 786;

(D) A specially designated terrorist as that term is defined in 31 CFR 595.311;

(E)  A terrorist organization as that term is defined in section 212(a)(3)(B)(vi) of the Immigration and Nationality Act (8 U.S.C. 1182(a)(3)(B)(vi));

(F)  Committing or attempting to commit a crime of terrorism, as that offense is described in 18 U.S.C. 2331(5) or 2332b(g)(5);

(G) Committing or attempting to commit the crimes of providing material support or resources to terrorists or designated foreign terrorist organizations, providing or collecting funds to finance acts of terrorism, or receiving military-type training from a foreign terrorist organization, as those offenses are defined in 18 U.S.C. 2339A, 2339B, 2339C, and 2339D; or

(H) Aiding, abetting, or conspiring in illegal activity with a person or organization described in paragraphs (b)(3)(i)(A) through (G) of this section.

(ii) The determination that an exclusion in paragraph (b)(3)(i) of this section applies must be made by the Assistant Attorney General for National Security.

Members of the Department should refer all requests for determination of whether a person or entity is excluded by 28 C.F.R. § 50.10(b)(3)(i) from the scope of this Policy to PSEU, which will route, as appropriate, such requests to the National Security Division.  The National Security Division will provide notice of any such determination to the Criminal Division through OEO.   

(c) Compulsory legal process for the purpose of obtaining information from or records of a member of the news media acting within the scope of newsgathering. [28 C.F.R. § 50.10(c)]

Compulsory legal process for the purpose of obtaining information from or records of a member of the news media acting within the scope of newsgathering is prohibited except under the circumstances set forth in paragraphs (c)(1) through (3) of this section.  (Note that the prohibition in this paragraph (c) on using compulsory legal process applies when a member of the news media has, in the course of newsgathering, only received, possessed, or published government information, including classified information, or has established a means of receiving such information, including from an anonymous or confidential source.)  The Department may only use compulsory legal process for the purpose of obtaining information from or records of a member of the news media acting within the scope of newsgathering, as follows:

(1) To authenticate for evidentiary purposes information or records that have already been published, in which case the authorization of a Deputy Assistant Attorney General for the Criminal Division is required;

(2)   To obtain information or records after a member of the news media agrees to provide or consents to the provision of the requested records or information in response to the proposed compulsory legal process, in which case authorization as described in paragraph (i) of this section is required; or

(3)   When necessary to prevent an imminent or concrete risk of death or serious bodily harm, including terrorist acts, kidnappings, specified offenses against a minor (as defined in 34 U.S.C. 20911(7)), or incapacitation or destruction of critical infrastructure (as defined in 42 U.S.C. 5195c(e)), in which case the authorization of the Attorney General is required.

Members of the Department shall endeavor to use the least intrusive means possible to secure authentication of information or records that have already been published, pursuant to 28 C.F.R. § 50.10(c)(1).  If authentication of information or records that have already been published requires grand jury or trial testimony from a member of the news media, any subpoena or other process to compel such testimony, even if issued with the consent of the member of the news media, must be authorized by the Deputy Attorney General pursuant to 28 C.F.R. § 50.10(f)(1) (seeking to compel grand jury or trial testimony).

(d) Compulsory legal process for the purpose of obtaining information from or records of a member of the news media not acting within the scope of newsgathering. [28 C.F.R. § 50.10(d)]

(1) The Department may only use compulsory legal process for the purpose of obtaining information from or records of a member of the news media who is not acting within the scope of newsgathering:

(i) When the member of the news media is the subject or target of an investigation and suspected of having committed an offense;

28 C.F.R. § 50.10(d)(1) permits the Department to use compulsory legal process under certain circumstances for the purposes of obtaining information from or records of a member of the news media who is not acting within the scope of newsgathering.

In criminal matters, the permission granted by 28 C.F.R. § 50.10(d)(1)(i) does not allow for the issuance of compulsory legal process to a member of the news media who is a “subject” of an investigation as that term is defined in JM 9-11.151, but who is not also suspected of having committed an offense.  For example, compulsory legal process cannot, through 28 C.F.R. § 50.10(d)(1)(i), be issued to a member of the news media whose conduct falls within the scope of the early stages of a grand jury investigation, but who is not yet suspected of criminal wrongdoing.

In civil matters, the permission granted by 28 C.F.R. § 50.10(d)(1)(i) applies to a member of the news media who is a party to a civil investigation and is suspected of having committed a civil violation.  In civil matters, the permission granted by 28 C.F.R. § 50.10(d)(1)(i) does not allow for the issuance of compulsory legal process to a member of the news media who is a party to a civil investigation but who is not also suspected of having committed a civil violation. 

(ii) To obtain information or records of a non-member of the news media, when the non-member is the subject or target of an investigation and the information or records are in a physical space, device, or account shared with a member of the news media;

(iii) To obtain purely commercial, financial, administrative, technical, or other information or records unrelated to newsgathering; or for information or records relating to personnel not involved in newsgathering;

(iv) To obtain information or records related to public comments, messages, or postings by readers, viewers, customers, or subscribers, over which a member of the news media does not exercise editorial control prior to publication;

(v) To obtain information or records of a member of the news media who may be a victim of or witness to crimes or other events, or whose premises may be the scene of a crime, when such status (as a victim or witness or crime scene) is not based on or within the scope of newsgathering; or

(vi) To obtain only subscriber and other information described in 18 U.S.C. 2703(c)(2)(A), (B), (D), (E), and (F). 

Information within the scope of 18 U.S.C. § 2703(c)(2)(C) (telephone connection records or records of session times and durations) is intentionally excepted from 28 C.F.R. § 50.10(d)(1)(vi).  Requests to utilize compulsory legal process to obtain information within the scope of 18 U.S.C. § 2703(c)(2)(C) must be evaluated pursuant to the applicable provisions of 28 C.F.R. § 50.10(c) (obtaining information from a member of news media acting within the scope of newsgathering) or other provisions of 28 C.F.R. § 50.10(d) (obtaining information from a member of the news media not acting within the scope of newsgathering), such as 28 C.F.R. § 50.10(d)(1)(i) (when the member of the news media is the subject or target of an investigation and is suspected of having committed an offense).

This Policy does not apply to, and no authorization is required for, compulsory legal process seeking information described in 18 U.S.C. § 2703(c) regarding an account used by a subject or target of a criminal investigation, or a party to a civil investigation who is not a member of the news media.  This Policy does not require any authorization to issue compulsory legal process seeking records of a non-member of the news media that could reveal contacts with a member of the news media.  This Policy is not intended to limit the Department’s traditional ability to use compulsory legal process to obtain information from, or records of, for example, a government employee (rather than a member of the news media) who has unlawfully disclosed government information.

Authorization obtained pursuant to 28 C.F.R. § 50.10(d)(1) to apply for a warrant to search the premises or person of a member of the news media also encompasses authorization to question the target member of the news media on a voluntary basis in conjunction with the execution of the warrant.     

(2) Compulsory legal process under paragraph (d)(1) of this section requires the authorization of a Deputy Assistant Attorney General for the Criminal Division, except that:

(i) To obtain information or records after a member of the news media agrees to provide or consents to the provision of the requested records or information in response to the proposed compulsory legal process, such compulsory legal process requires authorization as described in paragraph (i) of this section governing voluntary questioning and compulsory legal process following consent by a member of the news media; and 

(ii) To seek a search warrant for the premises of a news media entity requires authorization by the Attorney General.

For purposes of 28 C.F.R. § 50.10(d)(2)(ii), “premises of a news media entity” includes physical locations maintained or utilized by a news media entity, such as a newsroom or office building, and does not include e-mail accounts, social media accounts, or other digital accounts or devices. 

(e) Matters where there is a close or novel question as to the person’s or entity’s status as a member of the news media or whether the member of the news media is acting within the scope of newsgathering. [28 C.F.R. § 50.10(e)]

(1) When there is a close or novel question as to the person’s or entity’s status as a member of the news media, the determination of such status must be approved by the Assistant Attorney General for the Criminal Division.

(2) When there is a close or novel question as to whether the member of the news media is acting within the scope of newsgathering, the determination of such status must be approved by the Assistant Attorney General for the Criminal Division.  When the Assistant Attorney General finds that there is genuine uncertainty as to whether the member of the news media is acting within the scope of newsgathering, the determination of such status must be approved by the Attorney General.

When a member of the news media’s conduct is excluded from the definition of newsgathering by operation of 28 C.F.R. § 50.10(b)(2)(ii)(B) based on criminal acts committed in the course of obtaining information or using information, the Criminal Division will deem the determination under 28 C.F.R. § 50.10(e)(2) to be “close or novel” and it will be referred to the Assistant Attorney General for the Criminal Division for approval. 

In considering whether to recommend that a determination under 28 C.F.R. § 50.10(e)(2) be referred to the Attorney General for approval, the Assistant Attorney General for the Criminal Division will consider whether the matter presents unprecedented interpretive issues or is otherwise likely to implicate weighty First Amendment concerns.

(f) Compelled testimony. [28 C.F.R. § 50.10(f)]

(1) Except as provided in paragraph (f)(2) of this section, members of the Department must obtain the authorization of the Deputy Attorney General when seeking to compel grand jury or trial testimony otherwise permitted by this section from any member of the news media.

(2) When the compelled testimony under paragraph (f)(1) of this section has no nexus to the person’s or entity’s activities as a member of the news media, members of the Department must obtain the authorization of a Deputy Assistant Attorney General for the Criminal Division and provide prior notice to the Deputy Attorney General.

(3) Such authorization may only be granted when all other requirements of this policy regarding compulsory legal process have been satisfied.

“Compelled testimony” is any grand jury or trial testimony compelled by any subpoena or other process, even if issued with the consent of the member of the news media.

When seeking authorization from the Deputy Attorney General under 28 C.F.R. § 50.10(f)(1), members of the Department must provide information demonstrating that all other requirements of the Policy regarding compulsory legal process have been satisfied, per 28 C.F.R. § 50.10(f)(3).  In situations where members of the Department are seeking authorization to compel grand jury or trial testimony following consent by a member of the news media, the application to the Deputy Attorney General should establish that the appropriate Department official has properly authorized compulsory legal process pursuant to 28 C.F.R. § 50.10(i).  Such applications should include a description of (1) how the 28 C.F.R. § 50.10(g)(1)(iii) conditions were met; (2) whether the authorizing official considered requiring satisfaction of the exhaustion conditions described in 28 C.F.R. § 50.10(g)(1)(i) and (ii), and if they were not required per 28 C.F.R. § 50.10(g)(2), the reason(s) these conditions were not appropriate; and (3) how the authorizing official took into account the conditions described in 28 C.F.R. § 50.10(h)(2).

When providing “prior notice” to the Deputy Attorney General under 28 C.F.R. § 50.10(f)(2), members of the Department should, absent extraordinary circumstances, provide that notice in writing at least 10 business days prior to seeking to compel testimony from a member of the news media. 

In the course of authorizing requests otherwise permitted by this Policy to seek compulsion orders pursuant to Section 9-23.130 of the Justice Manual (relating to witness immunity), a Deputy Assistant Attorney General for the Criminal Division will determine whether there is a “nexus” to the witness’s activities as a member of the news media such that the authorization of the Deputy Attorney General would be required.  When making this “nexus” determination, a Deputy Assistant Attorney General for the Criminal Division must consider whether either direct examination or potential cross-examination may solicit responsive testimony bearing a “nexus” to the witness’s activities as a member of the news media.

(g) Exhaustion. [28 C.F.R. § 50.10(g)]

(1) Except as provided in paragraph (g)(2) of this section, the official authorizing the compulsory legal process must find the following exhaustion conditions are met:

(i) The Government has exhausted all reasonable avenues to obtain the information from alternative, non-news-media sources.

(ii) The Government has pursued negotiations with the member of the news media in an attempt to secure the member of the news media’s consent to the production of the information or records to be sought through compulsory legal process, unless the authorizing official determines that, for compelling reasons, such negotiations would pose a clear and substantial threat to the integrity of the investigation or pose the risks described in paragraph (c)(3) of this section.  Where the nature of the investigation permits, the Government must have explained to the member of the news media the Government’s need for the information sought in a particular investigation or prosecution, as well as its willingness or ability to address the concerns of the member of the news media.

(iii) The proposed compulsory legal process is narrowly drawn.  It must be directed at material and relevant information regarding a limited subject matter, avoid interference with unrelated newsgathering, cover a reasonably limited period of time, avoid requiring production of a large volume of material, and give reasonable and timely notice of the demand as required by paragraph (j) of this section.

(2) When the process is sought pursuant to paragraph (d)(1), (i), or (l) of this section, the authorizing official is not required to find that the exhaustion conditions in paragraphs (g)(1)(i) and (ii) of this section have been satisfied, but should consider requiring those conditions as appropriate. 

When compulsory legal process is sought pursuant to 28 C.F.R. § 50.10(d)(1) (compulsory legal process for the purpose of obtaining information from or records of a member of the news media not acting within the scope of newsgathering), 50.10(i) (voluntary questioning and compulsory legal process following consent by a member of the news media), or 50.10(l) (exigent circumstances involving risk of death or serious bodily harm), the authorizing official is required to find that the conditions set forth in 28 C.F.R. § 50.10(g)(1)(iii) have been satisfied.

(h) Standards for authorizing compulsory legal process.  [28 C.F.R. § 50.10(h)]

(1) In all matters covered by this section, the official authorizing the compulsory legal process must take into account the principles set forth in paragraph (a) of this section.

(2) Except as provided in paragraph (h)(3) of this section, when the member of the news media is not the subject or target of an investigation and suspected of having committed an offense, the official authorizing the compulsory legal process must take into account the following considerations:

(i) In criminal matters, there must be reasonable grounds to believe, based on public information or information from non-news-media sources, that a crime has occurred, and that the information sought is essential to a successful investigation or prosecution.  The compulsory legal process may not be used to obtain peripheral, nonessential, or speculative information.

(ii) In civil matters, there must be reasonable grounds to believe, based on public information or information from non-news-media sources, that the information sought is essential to the successful completion of the investigation or litigation in a case of substantial importance.  The compulsory legal process may not be used to obtain peripheral, nonessential, cumulative, or speculative information.

In civil matters, 28 C.F.R. § 50.10(h)(2) applies to a member of the news media who is not a party to a civil investigation and suspected of having committed a civil violation.

In civil matters in which the member of the news media is the plaintiff, the authorizing official is not required to, but should, take into account the considerations in 28 C.F.R. § 50.10(h)(2)(ii) as appropriate.

This Policy is not intended to shield from accountability a member of the news media who is a subject or target of a criminal investigation and suspected of having committed an offense, or who is a party to a civil investigation and suspected of having committed a civil violation, for conduct outside the scope of newsgathering.  The consideration in 28 C.F.R. § 50.10(h)(2) that “the information sought is essential” is not intended as an outright prohibition of important investigative steps.  For example, the question of whether the information sought is essential need not be construed narrowly at the outset of an investigation when it is difficult to determine how essential to the successful completion of the investigation the information will prove to be.

(3) When paragraph (h)(2) of this section would otherwise apply, but the compulsory legal process is sought pursuant to paragraph (i) or (l) of this section, the authorizing official is not required to, but should, take into account whether the information sought is essential to a successful investigation, prosecution, or litigation as described in paragraphs (h)(2)(i) and (ii) of this section.

(4) When the member of the news media is the subject or target of an investigation and suspected of having committed an offense, before authorizing compulsory legal process, the authorizing official is not required to, but should, take into account the considerations set forth in paragraphs (h)(2)(i) and (ii) of this section as appropriate.

In civil matters, 28 C.F.R. § 50.10(h)(4) applies to a member of the news media who is a party to a civil investigation and suspected of having committed a civil violation.

There may be times when potential newsgathering-related materials are inadvertently discovered while reviewing returns from compulsory legal process for which the government did not knowingly target a member of the news media and therefore, the process was not initially deployed for the purpose of obtaining information from or records of a member of the news media.  Part C of this Justice Manual provision addresses such situations.

(i) Voluntary questioning and compulsory legal process following consent by a member of the news media. [28 C.F.R. § 50.10(i)]

(1) When the member of the news media is not the subject or target of an investigation and suspected of having committed an offense, authorization by a United States Attorney or Assistant Attorney General responsible for the matter must be obtained in order to question a member of the news media on a voluntary basis, or to use compulsory legal process if the member of the news media agrees to provide or consents to the provision of the requested records or information in response to the proposed process.  When there is any nexus to the person’s activities as a member of the news media, such authorization must be preceded by consultation with the Criminal Division. 

In civil matters, 28 C.F.R. § 50.10(i)(1) applies to a member of the news media who is not a party to a civil investigation and suspected of having committed a civil violation.

When a Department law enforcement component seeks to question on a voluntary basis a member of the news media under the circumstances described in 28 C.F.R. § 50.10(i)(1), and no United States Attorney or Assistant Attorney General has assumed supervisory responsibility for the matter, it must partner with a United States Attorney’s Office or a Department Division to obtain authorization from a United States Attorney or an Assistant Attorney General in order to conduct the voluntary questioning.

When a member of the Department seeks to question on a voluntary basis a member of the news media under the circumstances described in 28 C.F.R. § 50.10(i)(1), or to use compulsory legal process if the member of the news media agrees to provide or consents to the provision of the requested records or information in response to the proposed process, and when no United States Attorney or Assistant Attorney General is responsible for the matter or partnering on the matter, authorization must be obtained from the closest equivalent Department official, which will typically be the head of a Department component.  Members of the Department should consult with OEO to determine who that authorizing official should be.

If a member of the news media may have learned information relevant to a criminal or civil investigation during the course of newsgathering, consultation with the Criminal Division is required prior to questioning the member of the news media on a voluntary basis or issuing compulsory legal process following consent by the member of the news media.  However, if there is no nexus to the person’s activities as a member of the news media, consultation with the Criminal Division is not required (although approval by the relevant United States Attorney, Assistant Attorney General, or other authorizing official remains necessary).  For example, if a member of the news media is a witness to a violent assault in his or her capacity as a private citizen, consultation with the Criminal Division is not required prior to questioning the member of the news media on a voluntary basis or issuing compulsory legal process following consent by the member of the news media. 

If there is any question as to whether there is a nexus to the person’s activities as a member of the news media, consultation with the Criminal Division is required prior to authorization.

(2) When the member of the news media is the subject or target of an investigation and suspected of having committed an offense, authorization by a Deputy Assistant Attorney General for the Criminal Division must be obtained in order to question a member of the news media on a voluntary basis, or to use compulsory legal process if the member of the news media agrees to provide or consents to the provision of the requested records or information in response to the proposed process.

In civil matters, 28 C.F.R. § 50.10(i)(2) applies to a member of the news media who is a party to a civil investigation and suspected of having committed a civil violation.

The term “consents to the provision of” is designed to capture situations in which the records are held by a third party, but the member of the news media consents to the government obtaining them. 

Consent to compulsory legal process or questioning on a voluntary basis shall be freely made and not a product of undue pressure, threats, or coercion.

Voluntary questioning includes situations in which a member of the news media voluntarily agrees to testify in a proceeding without the issuance of compulsory legal process.  Such voluntary questioning must be authorized in accordance with 28 C.F.R. § 50.10(i)(1) or (i)(2).  Voluntary questioning does not include situations in which a member of the news media initiates contact with a member of the Department to voluntarily provide information, such as to report a threat or a criminal offense.  In such situations, no consultation or authorization is required by this Policy. 

Any compulsory legal process to compel grand jury or trial testimony, even if issued with the consent of the member of the news media, must be authorized in accordance with 28 C.F.R. § 50.10(f).

In evaluating requests under 28 C.F.R. § 50.10(i), the authorizing official should take into account the general principles set forth in 28 C.F.R. § 50.10(a).

(j) Notice of compulsory legal process to the affected member of the news media. [28 C.F.R. § 50.10(j)]

(1) Members of the Department must provide notice to the affected member of the news media prior to the execution of authorized compulsory legal process under paragraph (c) of this section unless the authorizing official determines that, for compelling reasons, such notice would pose the risks described in paragraph (c)(3) of this section. 

(2) Members of the Department must provide notice prior to the execution of compulsory legal process authorized under paragraphs (d)(1)(ii) through (vi) of this section to a member of the news media that is not the subject or target of an investigation and suspected of having committed an offense, unless the authorizing official determines that, for compelling reasons, such notice would pose a clear and substantial threat to the integrity of the investigation or would pose the risks described in paragraph (c)(3) of this section and so informs the Deputy Attorney General in advance. 

In civil matters, 28 C.F.R. § 50.10(j)(2) applies to a member of the news media who is not a party to a civil investigation and suspected of having committed a civil violation.

When “inform[ing]” the Deputy Attorney General “in advance” under 28 C.F.R. § 50.10(j)(2), members of the Department should, absent extraordinary circumstances, do so in writing.

(3) If the member of the news media has not been given notice under paragraph (j)(1) or (j)(2) of this section, the United States Attorney or Assistant Attorney General responsible for the matter must provide notice to the member of the news media as soon as it is determined that such notice would no longer pose the concerns described in paragraph (j)(1) or (2) of this section, as applicable.

When no United States Attorney or Assistant Attorney General is responsible for the matter or partnering on the matter, notification must be provided by the closest equivalent Department official, which will typically be the head of a Department component.  Members of the Department should consult with OEO to determine who that notifying official should be.

(4) In any event, such notice must be given to the affected member of the news media within 45 days of the Government’s receipt of a complete return made pursuant to all forms of compulsory legal process included in the same authorizing official’s authorization under paragraph (c) or (d)(1)(ii) through (vi) of this section, except that the authorizing official may authorize delay of notice for one additional 45-day period if the official determines that, for compelling reasons, such notice continues to pose the same concerns described in paragraph (j)(1) or (2) of this section, as applicable. 

(5) Members of the Department are not required to provide notice to the affected member of the news media of compulsory legal process that was authorized under paragraph (d)(1)(i) of this section if the affected member of the news media is the subject or target of an investigation and suspected of having committed an offense.

(i) The authorizing official may nevertheless direct that notice be provided to the affected member of the news media.

(ii) If the authorizing official does not direct that such notice be provided, the official must so inform the Deputy Attorney General, and members of the Department who are responsible for the matter must provide the authorizing official with an update every 90 days regarding the status of the investigation.  That update must include an assessment of any harm to the investigation that would be caused by providing notice to the member of the news media.  The authorizing official will consider such update in determining whether to direct that notice be provided.

In civil matters, 28 C.F.R. § 50.10(j)(5) applies to a member of the news media who is a party to a civil investigation and suspected of having committed a civil violation.

(6) Notice under the policy in this section may be given to the affected member of the news media or a current employer of that member if that employer is also a member of the news media.

(7) A copy of any notice to be provided to a member of the news media shall be provided to the Director of the Office of Public Affairs and to the Director of the Criminal Division’s Office of Enforcement Operations at least 10 business days before such notice is provided, and immediately after such notice is provided to the member of the news media.

In exceptional circumstances when it is impracticable for a member of the Department to provide notice to the Director of the Office of Public Affairs (OPA) and the Director of OEO at least 10 business days prior to the provision of notice to a member of the news media, such notice to the OPA Director and OEO Director should be provided as soon as possible. 

(k) Non-disclosure orders. [28 C.F.R. § 50.10(k)]

(1) In seeking authorization to use compulsory legal process to obtain information from or the records of a member of the news media, members of the Department must indicate whether they intend to seek an order directing the recipient of the compulsory legal process not to disclose the existence of the compulsory legal process to any other person or entity and shall articulate the need for such non-disclosure order.

(2) An application for a non-disclosure order sought in connection with compulsory legal process under paragraph (c) of this section may only be authorized if the authorizing official determines that, for compelling reasons, disclosure would pose the risks described in paragraph (c)(3) of this section and the application otherwise complies with applicable statutory standards and Department policies.

(3) An application for a non-disclosure order sought in connection with compulsory legal process under paragraphs (d)(1)(ii) through (vi) of this section regarding a member of the news media that is not the subject or target of an investigation and suspected of having committed an offense may only be authorized if the authorizing official determines that, for compelling reasons, disclosure would pose a clear and substantial threat to the integrity of the investigation or would pose the risks described in paragraph (c)(3) of this section and the application otherwise complies with applicable statutory standards and Department policies.

In civil matters, 28 C.F.R. § 50.10(k)(3) applies to a member of the news media who is not a party to a civil investigation and suspected of having committed a civil violation. 

(4) An application for a non-disclosure order sought in connection with compulsory legal process under paragraph (d)(1)(i) of this section regarding a member of the news media that is a subject or target of an investigation and suspected of having committed an offense may be authorized if the application otherwise complies with applicable statutory standards and Department policies. 

In civil matters, 28 C.F.R. § 50.10(k)(4) applies to a member of the news media who is a party to a civil investigation and suspected of having committed a civil violation.

(5) Members of the Department must move to vacate any non-disclosure order when notice of compulsory legal process to the affected member of media is required (after any extensions permitted) by paragraph (j) of this section.

(l) Exigent circumstances involving risk of death or serious bodily harm. [28 C.F.R. §  50.10(l)]

(1) A Deputy Assistant Attorney General for the Criminal Division may authorize the use of compulsory legal process that would otherwise require authorization from the Attorney General or the Deputy Attorney General if the Deputy Assistant Attorney General for the Criminal Division determines that:

(i) The exigent use of such compulsory legal process is necessary to prevent the risks described in paragraph (c)(3) of this section; and

(ii) Those exigent circumstances require the use of such compulsory legal process before the authorization of the Attorney General or the Deputy Attorney General can, with due diligence, be obtained.

(2) In authorizing the exigent use of compulsory legal process, a Deputy Assistant Attorney General for the Criminal Division should take into account the principles set forth in paragraph (a) of this section; ensure that the proposed process is narrowly tailored to retrieve information or records required to prevent or mitigate the associated imminent risk; and require members of the Department to comply with the safeguarding protocols described in paragraph (p) of this section. 

(3) As soon as possible after the approval by a Deputy Assistant Attorney General for the Criminal Division of a request under paragraph (l)(1) of this section, the Deputy Assistant Attorney General must provide notice to the designated authorizing official, the Deputy Attorney General, and the Director of the Office of Public Affairs.  Within 10 business days of the authorization under paragraph (l)(1) of this section, the United States Attorney or Assistant Attorney General responsible for the matter shall provide a statement to the designated authorizing official containing the information that would have been provided in a request for prior authorization.

The designated authorizing official is the official who would have authorized the use of compulsory legal process, but for the exigency.

When no United States Attorney or Assistant Attorney General is responsible for the matter or partnering on the matter, the task of providing a “statement to the designated authorizing official” pursuant to 28 C.F.R. § 50.10(l)(3) falls instead to the closest equivalent Department official, which will typically be the head of a Department component.  Members of the Department should consult with OEO to determine who that tasked official should be.

(m) Arresting or charging a member of the news media. [28 C.F.R. § 50.10(m)]

(1) Except as provided in paragraph (m)(2) of this section or in circumstances in which prior authorization is not possible, members of the Department must obtain the authorization of the Deputy Attorney General to seek a warrant for an arrest, conduct an arrest, present information to a grand jury seeking a bill of indictment, or file an information against a member of the news media. 

If a matter has been authorized by the Deputy Attorney General pursuant to 28 C.F.R. § 50.10(m)(1), additional authorization is required prior to seeking a superseding indictment or superseding information against a member of the news media, even if related to the previously authorized charges.

(2) Except in circumstances in which prior authorization is not possible, when the arrest or charging of a member of the news media under paragraph (m)(1) of this section has no nexus to the person’s or entity’s activities as a member of the news media, members of the Department must obtain the authorization of a Deputy Assistant Attorney General for the Criminal Division and provide prior notice to the Deputy Attorney General.

A Deputy Assistant Attorney General for the Criminal Division will determine whether there is a “nexus” to the person’s or entity’s activities as a member of the news media such that the authorization of the Deputy Attorney General would be required, pursuant to 28 C.F.R. § 50.10(m)(1).

When providing “prior notice” to the Deputy Attorney General under 28 C.F.R. § 50.10(m)(2), members of the Department should, absent extraordinary circumstances, provide that notice in writing at least 10 business days prior to arresting or charging a member of the news media.   

No additional authorization is required prior to seeking a superseding indictment or superseding information against a member of the news media based upon conduct related to charges previously authorized by a Deputy Assistant Attorney General pursuant to 28 C.F.R. § 50.10(m)(2), but the authorizing Deputy Assistant Attorney General must be provided prior notice of the superseding indictment or information.

(3) When prior authorization was not possible, the member of the Department must ensure that the designated authorizing official is notified as soon as possible.

Authorization to arrest or charge a member of the news media pursuant to 28 C.F.R. § 50.10(m) includes authorization for a member of the Department to question a member of the news media on a voluntary basis, including through a factual proffer, in conjunction with the authorized arrest or charge. 

In evaluating requests under 28 C.F.R. § 50.10(m), the authorizing official should take into account the general principles set forth in 28 C.F.R. § 50.10(a).

(n) Applications for authorizations under this section. [28 C.F.R. § 50.10(n)]

(1) Whenever any authorization is required under this section, the application must be personally approved in writing by the United States Attorney or Assistant Attorney General responsible for the matter. 

(2) Whenever the authorizing official under this section is the Attorney General or the Deputy Attorney General, the application must also be personally approved in a memorandum by the Assistant Attorney General for the Criminal Division.

(3) The member of the Department requesting authorization must provide all facts and applicable legal authority necessary for the authorizing official to make the necessary determinations, as well as copies of the proposed compulsory legal process and any other related filings.

(4) Whenever an application for any authorization is made to the Attorney General or the Deputy Attorney General under this section, the application must also be provided to the Director of the Office of Public Affairs for consultation.

Written approval of an application by the United States Attorney or Assistant Attorney General responsible for the matter is only required for authorizations under this Policy; it is not required for consultations. 

When no United States Attorney or Assistant Attorney General is responsible for the matter or partnering on the matter, written approval of an application must be obtained from the closest equivalent Department official, which will typically be the head of a Department component.  Members of the Department should consult with OEO to determine who that approving official should be.

(o) Filter protocols. [28 C.F.R. § 50.10(o)]

(1) In conjunction with the use of compulsory legal process, the use of filter protocols, including but not limited to keyword searches and filter teams, may be necessary to minimize the potential intrusion into newsgathering-related materials that are unrelated to the conduct under investigation. 

(2) While the use of filter protocols should be considered in all matters involving a member of the news media, the use of such protocols must be balanced against the need for prosecutorial flexibility and the recognition that investigations evolve, and should be tailored to the facts of each investigation.

(3) Unless compulsory legal process is sought pursuant to paragraph (i) or (l) of this section, members of the Department must use filter protocols when the compulsory legal process relates to a member of the news media acting within the scope of newsgathering or the compulsory legal process could potentially encompass newsgathering-related materials that are unrelated to the conduct under investigation. The Attorney General or the Deputy Attorney General may waive the use of filter protocols only upon an express finding that there is a de minimis risk that newsgathering-related materials that are unrelated to the conduct under investigation would be obtained pursuant to the compulsory legal process and that any filter protocol would pose a substantial and unwarranted investigative burden. 

Compulsory legal process seeking only commercial, financial, administrative, technical, or other information or records unrelated to newsgathering does not “potentially encompass newsgathering-related materials that are unrelated to the conduct under investigation” when such information or records do not on their face reveal the identity of newsgathering sources and when the compulsory legal process specifically provides that it does not request the production of newsgathering-related materials.

(4) Members of the Department should consult the Justice Manual for guidance regarding the use of filter protocols to protect newsgathering-related materials that are unrelated to the conduct under investigation.

Members of the Department should consult with PSEU, which can provide detailed guidance regarding the development of filter protocols to protect newsgathering-related materials that are unrelated to the conduct under investigation.

(p) Safeguarding. [28 C.F.R. § 50.10(p)]

Any information or records that might include newsgathering-related materials obtained from a member of the news media or from third parties pursuant to the policy in this section must be closely held so as to prevent disclosure of the information to unauthorized persons or for improper purposes.  Members of the Department must consult the Justice Manual for specific guidance regarding the safeguarding of information or records obtained from a member of the news media or from third parties pursuant to this section and regarding the destruction and return of information or records as permitted by law.

To comply with the provisions of 28 C.F.R. § 50.10(p):

(i) Access to information or records that might include newsgathering-related materials obtained pursuant to 28 C.F.R. § 50.10 shall be limited to personnel who are working on the investigation or related judicial or administrative proceedings and who have a direct need to know.

(ii) Information or records that might include newsgathering-related materials obtained pursuant to 28 C.F.R. § 50.10 shall be used solely in connection with the investigation in which it was obtained, or related judicial or administrative proceedings, or for other purposes with the written consent of the member of the news media.

(iii) Information or records that might include newsgathering-related materials obtained pursuant to 28 C.F.R. § 50.10 may not be shared with any other organization or person inside or outside of the federal government, except as part of the investigation, as required in the course of judicial proceedings, or for other purposes with the written consent of the member of the news media.

(iv) At the conclusion of all proceedings related to or arising from the investigation, other than information or records disclosed in the course of judicial proceedings, or as required by law, the Department shall retain only one copy of any records that might include newsgathering-related materials obtained pursuant to 28 C.F.R. § 50.10, which copy shall be maintained in a secure and segregated repository.

(v) At the conclusion of all proceedings related to or arising from the investigation, members of the Department should provide to a member of the news media a copy of any of its newsgathering-related information or records obtained through compulsory legal process pursuant to 28 C.F.R. § 50.10, if doing so is otherwise permitted by law.  Upon the member of the news media’s request, and if doing so is otherwise permitted by law, the Department should destroy all remaining copies of such newsgathering-related information or records.   

If the authorizing official determines that specific, identifiable records or information constitute evidence of a separate past or imminent crime involving a concrete risk of death or serious bodily harm, including terrorist acts, kidnappings, specified offenses against a minor (as defined in 34 U.S.C. § 20911(7)), or the incapacitation or destruction of critical infrastructure (as defined in 42 U.S.C. § 5195c(e)), the authorizing official may authorize broader use of the information.

When submitting a request for authorization to employ compulsory legal process to obtain information from or records of a member of the news media, members of the Department must address the method by which newsgathering-related materials responsive to that compulsory legal process will be safeguarded. 

(q) Privacy Protection Act. [28 C.F.R. § 50.10(q)]

All authorizations pursuant to this section must comply with the provisions of the Privacy Protection Act (PPA), 42 U.S.C. 2000aa(a) et seq.  Members of the Department must consult the Justice Manual for specific guidance on complying with the PPA.  Among other things, members of the Department are not authorized to apply for a warrant to obtain work product materials or other documentary materials of a member of the news media under the PPA suspect exception, see 42 U.S.C. 2000aa(a)(1) and (b)(1), if the sole purpose is to further the investigation of a person other than the member of the news media. 

In addition to the requirements of this Policy, search warrants must also comply with the PPA.  The PPA governs search warrants for “work product materials” or other “documentary materials” possessed by a person “reasonably believed to have a purpose to disseminate to the public a newspaper, book, broadcast, or other similar form of public communication.”  42 U.S.C. § 2000aa(a), (b).  The PPA was intended “to limit searches for materials held by persons involved in First Amendment activities who are themselves not suspected of participation in the criminal activity for which the materials are sought.”  S. Rep. No. 96-874 at 11.  It was not designed “to limit the ability of law enforcement officers to search for and seize materials held by those suspected of committing the crime under investigation.”  Id.

Any search warrant that falls within the scope of this Policy must also comply with the PPA.  For example, if a member of the news media is the subject or target of a criminal investigation concerning the production or distribution of child sexual abuse material, an application for a warrant to search the person’s premises, devices, or records must be approved by a Deputy Assistant Attorney General for the Criminal Division (see 28 C.F.R. § 50.10(d)(1)(i), (d)(2)), and the Deputy Assistant Attorney General must confirm that the proposed warrant complies with the PPA.

In addition to any requirements imposed by this Policy, requests involving the contemplated search of premises of a person other than a member of the news media covered by the PPA must be submitted to the Criminal Division’s Computer Crime and Intellectual Property Section (CCIPS).  Such requests must be authorized by a Deputy Assistant Attorney General for the Criminal Division.  The Deputy Assistant Attorney General will determine (1) whether the person or entity whose premises, property, or records may be searched is protected by the PPA; and, if so, (2) whether the information sought constitutes “work product materials” or “other documents” as defined by the PPA; and, if so, (3) whether an exception to the general prohibition on the search and seizure of such materials is applicable.

(r) Anti-circumvention. [28 C.F.R. § 50.10(r)] 

Members of the Department shall not direct any third party to take any action that would violate a provision of this section if taken by a member of the Department. 

Members of the Department must consult with the Criminal Division prior to taking steps to enforce, or compel compliance with, compulsory legal process that was issued or obtained in the first instance by other Executive Branch departments or agencies.  The Department may not take steps to enforce, or compel compliance with, third-party compulsory legal process that this Policy prohibits the Department from issuing or obtaining. 

(s) Failure to comply. [28 C.F.R. § 50.10(a)] 

Failure to obtain the prior authorization required by this section may constitute grounds for an administrative reprimand or other appropriate disciplinary action.

(t) General provision. [28 C.F.R. § 50.10(r)]

This section is not intended to, and does not, create any right or benefit, substantive or procedural, enforceable at law or in equity by any party against the United States, its departments, agencies, or entities, its officers, employees, or agents, or any other person.

B.  Notice to Criminal Division of Factual or Legal Developments.

When compulsory legal process has been authorized pursuant to this Policy, members of the Department who requested and obtained such authorization shall immediately apprise the Criminal Division and the authorizing official of any subsequent changes to, or developments in, the facts or circumstances material to the decision-making process (e.g., impacting considerations identified in 28 C.F.R. § 50.10(h)).

When such disclosure of changed facts or circumstances is made, the member of the Department may not issue the compulsory legal process or move to compel compliance with the same unless expressly authorized to do so in writing by the authorizing official.

C.  Inadvertent Discovery of Potential Newsgathering-Related Materials.

There may be times when potential newsgathering-related materials are inadvertently discovered while reviewing returns from compulsory legal process for which the government did not knowingly target a member of the news media and therefore was not initially used for the purpose of obtaining information from or records of a member of the news media:

(1) If during the course of such review a member of the Department discovers, without previous knowledge, that the target of the legal process may in fact be a member of the news media, the member of the Department should stop reviewing returns and consult with the Criminal Division.  Inadvertently obtaining such records or information without previous knowledge that the target of the legal process may be a member of the news media is not a violation of this Policy.  If it is determined that the target of the legal process is a member of the news media, nunc pro tunc authorization of the already issued legal process must be sought and received, pursuant to the pertinent provision of 28 C.F.R. § 50.10, before the member of the Department can resume review or take any further investigative action.

(2) If during the course of such review of returns regarding a target of the legal process who is not a member of the news media, a member of the Department discovers unexpected newsgathering-related information, the member of the Department should stop reviewing any such materials and consult with the Criminal Division.  If necessary, the Criminal Division will recommend the use of filter protocols to review all remaining responsive materials. 

D.  Annual Reporting Requirements

By January 31 of each year, all Department Divisions and United States Attorneys’ Offices shall report to the Director of OEO whether compulsory legal process authorized under this Policy during the preceding calendar year was issued, served, or executed, and whether the affected member of the news media or third-party recipient of the compulsory legal process complied with or challenged the same, and the outcome of any such challenge.  This information will be used to prepare a public annual report regarding the Department’s use of these law enforcement tools.

E.  Mandatory Consultations with the Criminal Division. 

(1) To ensure the consistent interpretation and application of this Policy, members of the Department must consult with the Criminal Division, through PSEU, in the following circumstances, or regarding the following determinations:

(i) When there is a question regarding whether a person or entity is a member of the news media.  See JM 9-13.400(A)(b)(1). 

(ii) When there is a question regarding whether the conduct at issue of a member of the news media constitutes “newsgathering” or whether the member of the news media is “acting within the scope of newsgathering.”  See JM 9-13.400(A)(b)(2)(ii). 

(iii) Before questioning a member of the news media on a voluntary basis or issuing compulsory legal process following consent by a member of the news media, if there is any question as to whether there is a nexus to the person’s activities as a member of the news media.  See 28 C.F.R. § 50.10(i)(1); JM 9-13.400(A)(i)(1). 

(iv) Before litigating any issue related to compulsory legal process, authorized by the Department, to obtain information from or records of a member of the news media or otherwise arising from this Policy.

(v) Before seeking a certificate of authentication from a member of the news media.

(vi) Before taking steps to enforce, or to compel compliance with, compulsory legal process to obtain information from or records of a member of the news media that was issued or obtained in the first instance by other Executive Branch departments or agencies.

(vii) Upon inadvertently discovering potential newsgathering-related materials while reviewing returns from compulsory legal process for which the government did not knowingly target a member of the news media and therefore was not initially used for the purpose of obtaining information from or records of a member of the news media.  See JM 9-13.400(C). 

(2) Members of the Department are not required to consult with the Criminal Division prior to:

(i) Issuing preservation requests to third-party providers.

(ii) Contacting a member of the news media merely to warn the person or entity of an existing or potential threat.

(iii) Questioning a member of the news media on a voluntary basis or issuing compulsory legal process following consent by a member of the news media under the circumstances described in 28 C.F.R. § 50.10(i)(1), when there is clearly no nexus to the person’s activities as a member of the news media.  If there is any question as to whether there is a nexus to the person’s activities as a member of the news media, consultation with the Criminal Division is required.  See JM 9-13.400(A)(i)(1). 

Even if consultation with the Criminal Division is not required, authorization by a United States Attorney, Assistant Attorney General, or other relevant Department official responsible for the matter must be obtained prior to the use of such investigative action or tool.  

(iv) Seeking the voluntary production of records or information from a member of the news media, including prior to seeking authorization to issue consensual legal process as required by 28 C.F.R. § 50.10(i).

Even if consultation with the Criminal Division is not required, authorization by a United States Attorney, Assistant Attorney General, or other relevant Department official responsible for the matter must be obtained prior to the use of consensual legal process.  

(v) Speaking with a member of the news media who initiates contact with a member of the Department to voluntarily provide information, such as to report a threat or a criminal offense.  See JM 9-13.400(A)(i).  

(3) To satisfy the consultation requirement, members of the Department must submit to the Criminal Division a memorandum describing the relevant facts and addressing the relevant considerations.  Members of the Department may not employ the investigative tool or take the investigative action at issue until the Criminal Division has responded in writing.

[updated February 2024]

9-13.410 - Guidelines for Issuing Subpoenas to Attorneys for Information Relating to the Representation of Clients

1. Authorization of the Criminal Division. Because of the potential effects upon an attorney-client relationship that may result from the issuance of a subpoena to an attorney for information relating to the attorney’s representation of a client, the Department exercises close control over such subpoenas. Such subpoenas (for both criminal and civil matters) must first be authorized by the Assistant Attorney General or a Deputy Assistant Attorney General for the Criminal Division before they may issue, unless the circumstances warrant application of  one of the exceptions set forth in subsection D below.  However, any subpoena to be issued to an attorney in a civil or criminal matter arising principally under the internal revenue laws must be submitted to the Tax Division for authorization pursuant to Tax Division policies and procedures.   In instances requiring Department approval in which the matter arises under both the internal revenue and non-tax laws, the submission must be made to the Criminal Division for authorization, which will consult with the Tax Division unless the circumstances warrant application of one of the exceptions set forth in subsection D below.
   
   This policy extends to proposed subpoenas to paralegals, investigators, or other employees or agents of attorneys, if the information sought relates to the attorney’s representation of a client, including information that the employee or the agent of the attorney, rather than the attorney personally, acquired.
   
   The authorization requirement applies only to subpoenas for information related to the representation of a client.  It does not apply to all subpoenas involving attorneys or their employees or agents.  For example, Criminal Division authorization is not required to issue:
   • A subpoena to a bank for the records of an attorney’s trust account, because trust accounts tend to hold the pooled funds of numerous clients, and records related to such accounts ordinarily do not relate to individual clients, and do not contain or reflect privileged or confidential attorney-client communications.
   • A subpoena for internal law office business documents (pay records of law office employees, law firm tax returns, etc.), because it relates to the day-to-day business operations of the law firm, and not to the representation of a client. Subpoenas for billing and payment records related to the representation of a client, however, must be authorized by the Criminal Division.
   • A subpoena seeking information regarding the attorney’s personal activities, and not regarding his/her representation of a client.
   • A subpoena  seeking corporate business information, and which is directed to an attorney who serves as a corporate officer. To make clear that the attorney is being subpoenaed in his/her capacity as a corporate officer, and that no attorney-client information is being sought, the subpoena should be addressed to “John Doe, in his capacity as secretary of the XYZ Corporation.”
2. Preliminary Steps. When determining whether to issue a subpoena to an attorney for information relating to the attorney’s representation of a client, Department personnel must strike a balance between an individual’s right to the effective assistance of counsel and the public’s interest in the fair administration of justice and effective law enforcement. To that end, all reasonable attempts shall be made to obtain the information from alternative sources before issuing the subpoena to the attorney, unless such efforts would compromise the investigation or case. These attempts shall include reasonable efforts to first obtain the information voluntarily from the attorney, unless such efforts would compromise the investigation or case, or would impair the ability to subpoena the information from the attorney in the event that the attempt to obtain the information voluntarily proves unsuccessful.
3. Evaluation of the Request. In considering a request to approve the issuance of a subpoena to an attorney for information relating to the representation of a client, the Assistant Attorney General or a Deputy Assistant Attorney General for the Criminal Division applies the following principles:
   1. The information sought shall not be protected by a valid claim of privilege.
   2. All reasonable attempts to obtain the information from alternative sources shall have proved to be unsuccessful.
   3. In a criminal investigation or prosecution, there must be reasonable grounds to believe that a crime has been or is being committed, and that the information sought is reasonably needed for the successful completion of the investigation or prosecution. The subpoena must not be used to obtain peripheral or speculative information.
   4. In a civil case, there must be reasonable grounds to believe that the information sought is reasonably necessary to the successful completion of the litigation.
   5. The need for the information must outweigh the potential adverse effects upon the attorney-client relationship. In particular, the need for the information must outweigh the risk that the attorney may be disqualified from representation of the client as a result of having to testify against the client.
   6. The subpoena shall be narrowly drawn and directed at material information regarding a limited subject matter and shall cover a reasonable, limited period of time.
4. Exceptions to Criminal Division Authorization
   1. Friendly Subpoenas for Client-Related Information.  The United States Attorney or Assistant Attorney General responsible for a matter may authorize the issuance of a “friendly subpoena” for client-related information, that is, in a situation in which an attorney witness expressly agrees in writing (including by email) to provide the information, but requests the formality of a subpoena.  Before issuing any such subpoena, the responsible United States Attorney or Assistant Attorney General must evaluate the request consistent with subsection C of this policy.  If the friendly subpoena seeks testimony, information, or materials identified in Items (D)(2)(a)-(h) below, the federal prosecutor handling the case may authorize the issuance of the subpoena.
   2. Information Not Protected by Privilege or Circumstances Not Offending Attorney-Client Relationship.  In addition, authorization by the Criminal Division is not required where the contemplated subpoena is limited to seeking one or more of the following categories of information, since such subpoenas do not raise concerns regarding the potential application of the attorney-client privilege or the potential for negative impact upon the attorney-client relationship:
      1. Records of property transactions, including real estate closing statements, sales contracts, and payment records.
      2. Information or materials provided by a client to an attorney for the purpose of disclosure to third parties, including information or materials provided for disclosure in bankruptcy proceedings, tax filings, immigration proceedings, or similar matters and transactions.
      3. Publicly filed documents not reasonably available from other sources.
      4. Testimony or materials necessary to respond to a claim of ineffective assistance of counsel, including, but not limited to, petitions filed pursuant to 28 U.S.C. § 2255 and D.C. Code § 23-110.
      5. Testimony or materials necessary to probe the viability of, or respond to, a formal, written claim or assertion by a civil litigant or a criminal defendant that he or she reasonably relied on the advice of counsel in engaging in the conduct at issue in the specific matter in which the information is sought.This exception does not apply to subpoenas intended to probe the possibility or viability of an advice-of-counsel defense that has not formally been claimed or asserted by a civil litigant or criminal defendant.
      6. Testimony or materials within the scope of an explicit and unchallenged waiver, or other express form of consent by the attorney’s client to disclosure of the subject information.
      7. Information or materials produced or created in discovery, including deposition testimony, if such information or materials are not subject to a protective order.
      8. Testimony or materials that the court presiding over the underlying proceeding has ordered a party to produce or provide.
5. Submitting the Request. Requests for authorization should be submitted to the Policy and Statutory Enforcement Unit (PSEU), Office of Enforcement Operations, Criminal Division. When documents are sought in addition to the testimony of the attorney witness, a draft of the subpoena duces tecum, listing the documents sought, must accompany the submission.
6. No Rights Created by Guidelines. These guidelines are set forth solely for the purpose of internal Department of Justice guidance. They are not intended to, do not, and may not be relied upon to create any rights, substantive or procedural, enforceable at law by any party in any matter, civil or criminal, nor do they place any limitations on otherwise lawful investigative or litigative prerogatives of the Department of Justice.
7. Questions.  Questions regarding the applicability of the authorization requirement or any of its exceptions should be directed to the Policy and Statutory Enforcement Unit, Office of Enforcement Operations at 202-305-4023 or pseu@usdoj.gov.

[updated March 2016] [cited in JM 9-11.255; JM 9-13.420]

9-13.420 - Searches of Premises of Subject Attorneys

NOTE ON SCOPE: For purposes of this policy only: (1) “subject” includes an attorney who is a “suspect, subject or target,” or an attorney who is related by blood or marriage to a suspect, or who is believed to be in possession of contraband or the fruits or instrumentalities of a crime; and (2) “premises” includes any location or item where potentially protected attorney-client materials may be encountered – including physical locations and materials, electronic devices, and communications content held by third-party providers, e.g., email, social media, and cloud-based accounts of an attorney who is or may be engaged in the practice of law on behalf of clients. This policy applies to proposed warrants to search the premises of any employee, contractor, or agent of an attorney, including a paralegal, accountant or consultant retained by an attorney, as well as unlicensed or disbarred practitioners of law, if the materials to be searched potentially include information related to the representation of a client. This policy also applies to searches of business organizations where such searches involve materials in the possession of individuals serving in the capacity of legal advisor to the organization. Search warrants for "documentary materials" held by an attorney who is a "disinterested third party" (that is, any attorney who is not a subject) are governed by 28 C.F.R. 59.4 and JM 9-19.221 et seq. See also 42 U.S.C. Section 2000aa-11(a)(3).

There are occasions when effective law enforcement may require the issuance of a search warrant for the premises of an attorney who is a subject of an investigation, and who also is or may be engaged in the practice of law on behalf of clients. Because of the potential effects of this type of search on legitimate attorney-client relationships and because of the possibility that, during such a search, the government may encounter material protected by a legitimate claim of privilege, it is important that close control be exercised over this type of search. Therefore, the following guidelines should be followed with respect to such searches:

1. Alternatives to Search Warrants. In order to avoid impinging on valid attorney-client relationships, prosecutors are expected to take the least intrusive approach consistent with vigorous and effective law enforcement when evidence is sought from the premises of a subject attorney, including communications content held by a third-party provider. Consideration should be given to obtaining information from other sources or through the use of a subpoena, unless such efforts could compromise the criminal investigation or prosecution, or could result in the obstruction or destruction of evidence, or would otherwise be ineffective.

NOTE: Prior approval must be obtained from the Assistant Attorney General for the Criminal Division to issue a subpoena to an attorney relating to the representation of a client. See JM 9-13.410.

2. Authorization by United States Attorney or Assistant Attorney General. No application for such a search warrant may be made to a court without the express approval of the United States Attorney or pertinent Assistant Attorney General. Ordinarily, authorization of an application for such a search warrant is appropriate when there is a strong need for the information or material and less intrusive means have been considered and rejected.
3. Prior Consultation. In addition to obtaining approval from the United States Attorney or the pertinent Assistant Attorney General, and before seeking judicial authorization for the search warrant, the federal prosecutor must consult with the Criminal Division through the Office of Enforcement Operations, Policy and Statutory Enforcement Unit (PSEU), which can be reached at (202) 305-4023 or pseu@usdoj.gov.

NOTE: Attorneys are encouraged to consult with PSEU as early as possible regarding a possible search of an attorney's premises.  

To facilitate the consultation, the prosecutor should submit a form available to Department attorneys through PSEU’s intranet site.  The prosecutor must provide relevant information about the proposed search along with a draft copy of the proposed search warrant, affidavit in support thereof, and any special instructions to the searching agents regarding search procedures and filter protocols to be followed to ensure that the prosecution team is not "tainted" by any privileged material inadvertently seized during the search. Such filter protocols are discussed further below. This consultation process does not preclude any United States Attorney or Assistant Attorney General from discussing the matter personally with the Assistant Attorney General of the Criminal Division.

If exigent circumstances prevent such consultation before the warrant is presented to a court, the Criminal Division should be notified of the search as promptly as possible. In all cases, the Criminal Division should be provided as promptly as possible with a copy of the judicially authorized search warrant, search warrant affidavit, and any special instructions to the searching agents.

The Criminal Division is committed to ensuring that consultation regarding attorney search warrant requests will not delay investigations. Timely processing will be assisted if the Criminal Division is provided as much information about the search as early as possible. The Criminal Division should also be informed of any deadlines.

As part of the consultation process described above, the Criminal Division shall consult with the Office of the Deputy Attorney General, as set forth in the Attorney General’s December 30, 2020 memorandum.

4. Safeguarding Procedures and Contents of the Affidavit. Safeguarding procedures, including filter protocols, should be designed to ensure that privileged materials are not improperly viewed, seized, or retained during the course of the search. While the procedures to be followed should be tailored to the facts of each case and the requirements and judicial preferences and precedents of each district, in all cases a prosecutor must employ adequate precautions to ensure that the materials are reviewed for privilege claims and that any privileged documents are returned to the attorney from whom they were seized.
5. Conducting the Search. The search warrant should be drawn as specifically as possible, consistent with the requirements of the investigation, to minimize the need to search and review privileged material to which no exception applies.

While every effort should be made to avoid viewing privileged material, the search may require limited review of arguably privileged material to ascertain whether the material is covered by the warrant. Therefore, to protect the attorney-client privilege and to ensure that the investigation is not compromised by exposure to privileged material relating to the investigation or to defense strategy, a "filter team" should be designated, consisting of agents and lawyers not involved in the underlying investigation. Prior to conducting any search of a subject attorney’s premises, prosecutors should consult the Department’s Guidance on Attorney-Client Privilege and Attorney Work Product Filter Protocols for Search Warrants (July 2020), also available on PSEU’s intranet site.

The filter protocols and other search instructions should be provided to the filter team and thoroughly discussed with the filter team prior to the search. The protocols should set forth procedures designed to minimize intrusion into privileged material, and should ensure that the filter team does not disclose any information to the investigation/prosecution team unless and until so instructed by the attorney in charge of the filter team. Filter team lawyers should be available either on or off-site, to advise the agents during the course of the search, but should not participate in the search itself.

The affidavit in support of the search warrant may attach the search instructions and filter protocols,  depending on district practice.  At a minimum, the affidavit should generally state the government's intention to employ procedures designed to ensure that attorney-client privileges are not violated, and the approved search procedures and filter protocols should be followed.

The PSEU Filter Team Procedures Template, which provides sample filter team instructions and guidance, is available on PSEU’s intranet site.  Any questions regarding the template or its application to particular scenarios may be directed to PSEU.

If it is anticipated that electronic devices or electronic records will be searched or seized, prosecutors are expected to follow the procedures set forth in the current edition of Searching and Seizing Computers, published by the Computer Crime and Intellectual Property Section (CCIPS).

6. Review Procedures. The following review procedures should be discussed and memorialized prior to approval of any warrant, and should take into account the practice in your district, the circumstances of the investigation, and the volume of materials seized.
   • Who will conduct the review, i.e., a privilege team, a judicial officer, or a special master.
   • Whether all documents will be submitted to a judicial officer or special master or only those which a privilege team has determined to be arguably privileged or arguably subject to an exception to the privilege.
   • Whether copies of all seized materials will be provided to the subject attorney (or a legal representative) in order that: a) disruption of the law firm's operation is minimized; and b) the subject is afforded an opportunity to participate in the process of submitting disputed documents to the court by raising specific claims of privilege. To the extent possible, providing copies of seized records is encouraged, where such disclosure will not impede or obstruct the investigation.
   • Whether appropriate arrangements have been made for storage and handling of electronic evidence and procedures developed for searching electronic data (i.e., procedures which recognize the broad  nature of computer seizure and are designed to avoid review of materials potentially implicating the privilege of clients whose conduct is not encompassed by the proposed warrant).

These guidelines are set forth solely for the purpose of internal Department of Justice guidance. They are not intended to, do not, and may not be relied upon to create any rights, substantive or procedural, enforceable at law by any party in any matter, civil or criminal, nor do they place any limitations on otherwise lawful investigative or litigative prerogatives of the Department of Justice.

[updated January 2025]

9-13.500 - International Legal Assistance

Some countries reserve official acts to local officials and provide significant criminal penalties for persons who engage in such acts in their territory without authorization.  Before attempting to do any unilateral investigative act outside the United States relating to a criminal investigation or prosecution, including contacting a witness by telephone or mail, prior approval must be obtained from the Criminal Division’s Office of International Affairs (OIA) (202-514-0000).

In addition, OIA must be consulted before contacting any foreign or State Department official in matters relating to extradition of a fugitive or the obtaining of evidence through compulsory process from a foreign authority in a criminal investigation, prosecution, or ancillary criminal matter. 

Any proposed contact with foreign officials, other than United States investigative agents, in a foreign country for the purpose of obtaining the extradition of a fugitive or evidence through compulsory process should first be discussed with OIA.

None of the above is intended to prevent prosecutors from:

1.  having preliminary discussions with U.S. law enforcement representatives posted abroad concerning the obtaining of assistance,
2. communications with agents of State Department’s Diplomatic Security Service concerning an investigation under their jurisdiction, or
3. participating in standing international committees such as the U.S.-Canada Cross Border Committee.

[cited in JM 9-11.140] [updated April 2018]

9-13.510 - Obtaining Evidence Abroad—General Considerations

Every nation enacts laws to protect its sovereignty and can react adversely to American law enforcement efforts to gather evidence within its borders without authorization.  Such efforts can constitute a violation of that nation’s sovereignty or criminal law.  You should contact the Office of International Affairs, Criminal Division, as soon as you become aware that you may need evidence located in another country to determine methods for securing assistance from abroad and to select an appropriate one.

[updated June 2018]

9-13.512 - Intended Use of the Evidence

When a country provides evidence pursuant to a request for legal assistance, such as an MLAT, letter rogatory, or letter of request, contact OIA before using or disclosing it for a purpose other than that specified in the legal assistance request. (Examples of such use or disclosure include Freedom of Information Act requests, or requests to use the evidence in a parallel civil or administrative proceeding.) OIA will work with the USAO to determine whether the evidence can be used for a different purpose without the express permission of the country that provided it and, if not, for guidance in securing such permission.

[updated April 2018]

9-13.514 - Time Required

Contact the Office of International Affairs as soon as it appears that assistance from overseas will be needed.

[updated January 2020]

9-13.516 - Cost of Obtaining Evidence

Be sure funds are available before making a costly request.

[updated January 2020]

9-13.525 - Subpoenas and Other Compulsory Legal Process Regarding Evidence or Information Located Abroad, or Regarding Foreign Corporate Officials Temporarily in the United States; and Service of Process in a Foreign Country

1. Prior Approval for Subpoenas or Other Unilateral Compulsory Measures Regarding Evidence or Information Located Abroad
2. Pre-issuance Approval: Prosecutors must obtain approval through the Office of International Affairs (OIA) before issuing, or applying for, any subpoena or other legal process that:
   1. compels production of evidence or information; and
   2. is directed to:
      1. persons or entities located in a foreign country; or
      2. persons or entities in the United States for evidence or information located abroad, where the prosecutor or investigator seeking the evidence or information has been notified that it is located in a foreign country.

No prior approval through OIA is required if it is not known whether the evidence or information is located in a foreign country, or where the prosecutor or investigator cannot clearly identify a particular foreign location where the evidence or information may be located (e.g., where the location of data is dynamic due to load-balancing efforts).

2. Pre-Enforcement Approval: Prosecutors must also obtain approval through OIA prior to initiating proceedings to enforce compliance with a subpoena or other legal process that compels another party to provide evidence or information that is known to be located in a foreign country.  This includes situations where the prosecutor or investigator was unaware that the requested evidence or information was located in a particular foreign country at the time of the issuance of the subpoena or other process, but where the prosecutor or investigator is subsequently notified of that fact.
3. Prior Approval for Subpoenas on Foreign Corporate Officers Temporarily in the United States

Prosecutors must obtain approval through OIA prior to serving a subpoena ad testificandum on an officer of, or attorney for, a foreign bank or corporation who is temporarily in or passing through the United States when the testimony sought relates to the officer’s or attorney’s duties in connection with the operation of the bank or corporation.

3. Prior Approval for Service of Process in a Foreign Country  

Prosecutors must obtain approval through OIA prior to seeking or issuing a 28 U.S.C. §1783 subpoena requiring the appearance of a national or resident of the United States who is in a foreign country, or requiring the production of a specified document or other thing by that national or resident.  

4. National Security Matters

In national security matters, OIA shall coordinate with the National Security Division on any requests for approval under this section (JM 9-13.525).

[cited in JM 9-13.520] [updated May 2023] 

9-13.526 - Forfeiture of Assets Located in Foreign Countries

• Both international and domestic coordination are needed in matters relating to the forfeiture of assets located in foreign countries. Consequently, any attorney for the Federal government who plans to file a civil forfeiture action for assets located in another country pursuant to 28 U.S.C. § 1355(b)(2) is directed to notify the Office of International Affairs (OIA) of the Criminal Division before taking such action. Notification to OIA should be in writing and include the following information:  
• a precise description of the assets subject to forfeiture;
• identification of the foreign country in which the assets are located and specific information as to their exact location (e.g., city, bank, account number and/or name);
• a brief description of the facts supporting the proposed forfeiture, particularly the acts or omissions occurring in the district requesting concurrence;
• identification of any other known districts which might have a claim to seeking forfeiture of the same assets and/or which have charges pending against the defendant/owner of the assets in question; and
• a description of any contact or communication already undertaken by the pertinent government attorney or U.S. law enforcement agents with the U.S. Embassy in the foreign country involved or with any officials or law enforcement authorities of that country concerning the assets, their potential forfeitability, or the offenses or criminal case underlying the proposed forfeiture.

Within ten days of receipt of such notification, OIA, in consultation with the Money Laundering and Asset Recovery Section, Criminal Division, will review the notification information, consult with foreign and U.S. authorities as appropriate to the facts and circumstances of the specific proposal, and communicate its findings to the attorney for the Federal government who submitted the notification.

Attorneys for the Federal government are also directed to coordinate with OIA in order to present to a foreign government, for enforcement or recognition, any civil or criminal forfeiture order entered in the United States for property located within the foreign jurisdiction.

In cases where it appears that the property in question is likely to be removed, destroyed, or dissipated so as to defeat the possibility of the forfeiture under U.S. law, the attorney for the Federal government may request OIA to seek the assistance of the authorities of the foreign government where the property is located to seize, restrain, or take other action necessary and appropriate to preserve the property for forfeiture.

[cited in JM 9-119.010] [updated April 2018]

9-13.530 - Special Considerations—Translations

In every case requiring a translation of the legal assistance request, prosecutors must reach a clear understanding with the Office of International Affairs (OIA) about who will secure the translation. Generally, the U.S. Attorney’s Office seeking assistance must pay for the translation.  See JM 9-13.550.

[updated April 2018]

9-13.534 - Foreign Travel by Prosecutors

Foreign travel by USAO personnel must be authorized in advance by the Executive Office for United States Attorneys (EOUSA) .  See JM 3-8.730.  Foreign travel involving Departmental attorneys must be approved by their component. 

All AUSAs and Department attorneys traveling overseas in connection with a criminal matter must also obtain approval from the Criminal Division’s Office of International Affairs (OIA).

All AUSAs and Department attorneys traveling overseas in connection with international criminal justice sector capacity building and assistance efforts funded through the Departments of State and Defense, including prosecutorial, law enforcement, and judicial workshops and symposia and assistance efforts, shall notify the Criminal Division’s Office of Overseas Prosecutorial Development, Assistance and Training (OPDAT) for travel concurrence.   For activities requiring notification to OPDAT that are solely related to assistance to foreign law enforcement offices, OPDAT will coordinate with the Criminal Division’s International Criminal Investigative Training Assistance Program (ICITAP) regarding travel concurrence.

Travelers should contact EOUSA, OIA, and/or OPDAT, as appropriate, well in advance of their intended departure date because foreign clearances take time.

[updated April 2018] 

9-13.535 - Depositions

If an essential witness is abroad and is not subject to a subpoena (e.g., is a U.S. person unwilling to come to the United States to testify or is not a U.S. person), the prosecutor may attempt to proceed by means of a deposition. See Fed. R. Crim. P. 15 and 18 U.S.C. § 3503. Prosecutors must consult with OIA about arranging a deposition overseas. 

[updated April 2018]

9-13.540 - Assisting Foreign Authorities

All incoming foreign assistance requests requiring judicial action or compulsory process, whether such requests are made pursuant to treaties, letters rogatory, letters of request, or requests made through other channels, should be submitted directly to OIA to evaluate and, where appropriate, to authorize execution pursuant to 18 U.S.C. § 3512.  Should a foreign authority or an agent deliver such a request directly to a federal prosecutor, the prosecutor should forward it immediately to OIA. The prosecutor may not institute legal process in aid of the request or letter rogatory absent statutory authorization under 18 U.S.C. § 3512 from OIA.  With respect to requests not involving the use of compulsory process, prosecutors are strongly encouraged to contact OIA prior to responding to the request whenever such request appears to raise issues relating to foreign policy or involve sensitive diplomat considerations.

Contacting OIA will avoid situations in which USAOs, acting with good intentions to help foreign colleagues, implement their own procedures and, inadvertently, take actions contrary to U.S. law or Department policy.  For example, requests involving political offenses, implicating national interests, or submitted by uncooperative countries or countries with which U.S. cooperation is on hold, require close coordination with OIA.

(These restrictions do not apply when a foreign law enforcement authority provides information to U.S. authorities, a Department component opens its own investigation based on that information, and U.S. authorities share information generated from their own investigation, including information obtained via compulsory process such as a search warrant, with those foreign law enforcement authorities.)

Costs of executing foreign requests (including court reporter’s fees) are generally the responsibility of the country making the request unless an applicable treaty requires the United States to pay; in that event, the United States Attorney’s Office pays the costs.  See JM 9-13.550.

[updated June 2018] 

9-13.550 Costs Relating to International Legal Assistance

In general, translation costs associated with the obtaining of evidence from abroad are borne by the requesting USAO or state prosecutor’s office.  Translation costs associated with a foreign government’s request for mutual legal assistance are generally borne by the foreign government.  Prosecutors should contact OIA for additional information in specific cases.

[new April 2018]

9-13.600 - Guidance on No-Knock Warrants

When executing a search warrant at a private dwelling, federal agents are generally required to “knock and announce” their identity, authority, and purpose, and demand entry.  U.S. Const., amend. IV; 18 U.S.C. § 3109; see Hudson v. Michigan, 547 U.S. 586 (2006). Once that announcement is made, agents must wait a reasonable amount of time based on the totality of the circumstances to permit the occupant to open the door before making entry into the dwelling. See United States v. Banks, 540 U.S. 31 (2003).

The Supreme Court has recognized, however, that there are certain situations where it is not constitutionally necessary to “knock and announce” before entering a dwelling—namely, where the law enforcement officer has reasonable grounds to believe that knocking and announcing would create a threat of physical violence, likely result in destruction of evidence, or be futile. See Hudson, 547 U.S. at 589-90. These search warrants are often referred to as “no-knock” warrants.  Because of the risk posed to both law enforcement and civilians during the execution of “no knock” warrants, the Department of Justice recognizes it is important that this authority be exercised only in the most compelling circumstances.

1. Approval process.
   1. Law enforcement officers of the Department of Justice[Footnote 1] may seek judicial authorization to conduct a “no-knock” entry only if the officer has reasonable grounds at the time the warrant is sought that knocking and announcing law enforcement’s presence would create an imminent threat of physical violence to the officer and/or another person.
   2. Prior to seeking judicial authorization for the “no knock” entry, the officer must first obtain approval from:
      1. The Criminal Chief of the relevant U.S. Attorney’s Office or a Deputy Chief in a Main Justice litigating component; and
      2. An Assistant Special Agent in Charge or Chief Deputy Marshal in the district.
   3. Once judicial authorization is obtained for the “no knock” warrant, law enforcement may proceed without “knocking and announcing” their presence unless they learn of facts that negate the circumstances that justified this Department policy exception to the “knock and announce” rule.
2. Exigent and Exceptional Circumstances
   1. If an officer did not anticipate the need for a “no knock” entry at the time the warrant was sought, the officer may conduct a “no knock” entry only if exigent circumstances arise at the scene such that knocking and announcing law enforcement’s presence would create an imminent threat of physical violence to the officer and/or another person. If an officer relies on this “exigent circumstances” exception in executing the warrant, the officer or their supervisor shall:
      1. Immediately notify their Special Agent in Charge or United States Marshal; and
      2. Provide written notice to the United States Attorney or relevant Assistant Attorney General.
   2. Should an exceptional circumstance arise (e.g., in a national security matter) where no imminent threat of physical violence is present, but an officer believes the evidence is so significant, and the risk of its destruction so pronounced, that a “no knock” entry is warranted, judicial authorization for a “no knock” warrant can be sought if:
      1. Approval is first obtained from the head of the law enforcement component and the United States Attorney or relevant Assistant Attorney General; and
      2. Notice is provided to the Office of the Deputy Attorney General.

[Footnote 1] For the purposes of this Section, “law enforcement officers of the Department of Justice” includes any task force officer when that individual is acting under the authority of a Department law enforcement agency, including during federal task force operations.

[added January 2025]

9-13.700 - Applications for Protective Orders Pursuant to 18 U.S.C. § 2705(b)

The Stored Communications Act (SCA) permits the government to obtain certain records and information from providers of electronic communications services or remote computing services relating to their customers or subscribers.  Under the SCA, the government may compel the disclosure of different categories of information via subpoena, a court order under 18 U.S.C. § 2703(d), or a search warrant.  The SCA does not by default forbid a provider from notifying anyone.  Providers will be prohibited from voluntarily notifying their users of the receipt of legal process under the SCA only if the government obtains a protective order under 18 U.S.C. § 2705(b), based on a demonstrated need for protection from disclosure.

Each § 2705(b) order should be supported by an appropriate factual basis, and each order should extend only as long as necessary to satisfy the government’s interest.  Prosecutors who are applying for § 2705(b) orders must follow the steps outlined below:

1. Prosecutors must conduct an individualized, meaningful, and case-specific assessment regarding the need for protection from disclosure prior to seeking a § 2705(b) order and only seek an order when circumstances require.
2. In applying for a § 2705(b) order, prosecutors should tailor the application to include the available facts of the specific case and/or concerns attendant to the particular type of investigation.  The prosecutor should identify which of the factors set forth in § 2705(b)(1)–(5) apply and explain why.  For example, prosecutors might choose to include information about the relationship of the data sought to the subject(s) of the investigation or describe the potential for related accounts or data to be destroyed or otherwise made inaccessible to investigators.  Similarly, prosecutors may identify concerns attendant to the risk of flight or harm to public safety in that particular investigation, including such concerns based on experience with similar types of investigations.  The factors justifying protection from disclosure may be similar in many cases, particularly at the outset of an investigation.  As appropriate, prosecutors may state the extent to which the stage of the investigation limits the availability of case-specific facts justifying the § 2705(b) order.
   
   When applying for an initial § 2705(b) order to accompany a subpoena seeking basic subscriber information in an ongoing investigation that is not public or known to the subject(s) of the investigation, stating more general reasons for protection from disclosure under § 2705(b)—such as the risk that subject(s) will flee, destroy or tamper with evidence, change patterns of behavior, or notify confederates—frequently will suffice.  At a later stage of the investigation, for example, when a search warrant is being sought, the prosecutor should include more specific facts, as available, in support of the protective order.
   
   If a § 2705(b) order would delay notice to a Member of Congress, Congressional Office, or a Congressional Staffer, as defined in JM 9-85.110, or a Member of the News Media, as defined in JM 9-13.400, the prosecutor must disclose such information in the application.
3. Prosecutors may seek a single protective order that covers multiple grand jury subpoenas issued as part of the same investigation, or a single protective order that covers other sets of nearly identical legal process in a discrete investigation.  A single protective order for multiple items of process should be sought only if the facts justifying protection from disclosure are the same for all items of process covered by the order.  Prosecutors should ensure that a copy of the protective order is served with each item of process covered by the order.
4. Barring exceptional circumstances, prosecutors filing § 2705(b) applications may only seek to delay notice for one year or less.
5. If factors justifying protection from disclosure continue to exist at the expiration of the original order, subsequent extensions of equal or shorter duration may be sought.  Requests should be supported with such additional, specific facts as may have been developed through the investigation, and prosecutors should not assume that a prior need for a protective order means a subsequent order is necessary. Applications for protective orders must be approved in writing by a supervisor designated by the United States Attorney or the appropriate Assistant Attorney General whenever the application is for a second or successive period of non-disclosure, such that the total period of the protective order exceeds 18 months. The litigating component making the application shall maintain a record of such approval. Supervisory approval for a successive protective order is not necessary if one or more target(s) of the investigation is located outside the United States and/or is a current fugitive. 
6. Applications for additional protective orders must also be approved in writing by a supervisor designated by the United States Attorney or the appropriate Assistant Attorney General whenever it appears reasonably likely that the target(s) of the investigation already knows of the investigation’s existence. The litigating component making the application shall maintain a record of such approval.
7.  When closing an investigation or matter, a prosecutor must immediately assess whether there is a basis to maintain any outstanding protective orders issued pursuant to § 2705(b). If the prosecutor concludes that there is no such basis, the office must terminate the protective order and ensure the service provider is notified of any such termination (and, if necessary, notify and/or seek approval from the appropriate court before doing so). If the prosecutor believes there is a compelling reason to maintain a protective order, the prosecutor must seek approval from a supervisor designated by the United States Attorney or the appropriate Assistant Attorney General to allow the protective order to remain in effect.  If the prosecutor has reason to believe that there is another Department prosecutor investigating the same individual or criminal conduct, he or she should coordinate with the other prosecutor(s) as applicable when deciding whether to terminate any outstanding protective order. Early termination of protective orders is not required for accounts that prosecutors believe were solely used as part of criminal infrastructure. 
8. All sections and offices must establish a protocol by which they routinely review the need for § 2705(b) orders in an ongoing investigation or case as part of an office’s regular case review.  All sections and offices must also establish a protocol by which an investigation’s or case’s outstanding § 2705(b) orders are reviewed as part of a case closing procedure.
9. There may be “exceptional circumstances” in which § 2705(b) orders of longer duration are necessary, such as in certain national security investigations with a significant foreign nexus, where the investigation significantly differs from routine criminal investigations. Prosecutors must notify the Department’s Criminal Division or National Security Division when they seek a § 2705(b) protective order of greater than one year due to “exceptional circumstances.” Supervisors in the section or office seeking such orders should conduct a review at least annually of such orders in order to confirm that any such unexpired orders remain necessary, move to lift any unexpired orders that are no longer necessary, and notify the Criminal Division or National Security Division of the results of that review, as warranted.
10. The Department recognizes that judges may direct shorter or longer periods for orders, consistent with the language of § 2705(b).

This policy does not impact or alter existing procedures governing protective orders pursuant to any other authority, including 18 U.S.C. § 2709(c) or the Termination Procedures for National Security Letter Nondisclosure Requirement, Federal Bureau of Investigation (Nov. 24, 2015).  Questions related to the interpretation or recommended implementation of this guidance should be directed to the Computer Crime and Intellectual Property Section of the Criminal Division or the National Security Cyber Section of the National Security Division.

[updated September 2024]

9-13.800 - Access to and Disclosure of Financial Records

The Right to Financial Privacy Act of 1978, 12 U.S.C. § 3401 et seq., governs federal agencies' access to and disclosure of all "financial records" of any "customer" from a "financial institution." This statute sets forth a complex set of procedures which United States Attorneys (along with other federal officials) must follow in obtaining the records covered by the Act. These procedures must be followed by law enforcement officials if they are to obtain records needed in an investigation without alerting the target(s) of that investigation.

[updated April 2022] [cited in JM 9-11.141; JM 9-11.142]

9-13.900 - Access to and Disclosures of Tax Returns in a Non-tax Criminal Case

Title 26 U.S.C. § 6103 prohibits disclosure of tax returns and tax return information except as specifically provided in  § 6103, or other sections of the Code. Among the disclosures authorized are those in 26 U.S.C. § 6103(i) concerning access to returns and return information by certain Department of Justice personnel for use in the investigation and prosecution of federal criminal statutory violations and related civil forfeitures not involving tax administration.

Applications for the ex parte order authorized by this paragraph may be authorized by: the Attorney General, the Deputy Attorney General, the Associate Attorney General, any Assistant Attorney General, a United States Attorney, any special prosecutor appointed under 28 U.S.C. § 593, or any attorney in charge of a Criminal Division organized crime strike force established pursuant to 28 U.S.C. § 510. It is anticipated that most applications will be authorized by United States Attorneys or Strike Force Chiefs.

It is the Department's policy that an Ex Parte Application For Returns and Return Information be filed under seal. Prosecutors should file the motion to seal simultaneously with the Application. The motion should request the court to seal the application and its order granting or denying the application. United States Attorneys should notify Internal Revenue Service whenever a motion to seal is granted, and whenever the records are subsequently unsealed.

[updated January 2020]