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

In April 2025, the Attorney General issued an updated News Media Policy (Policy) on obtaining information from, or records of, members of the news media.  The new Policy adopts a modified version of the 2014 regulations, revised to bring the regulations back into alignment with the decades-long practice.

The purpose of these regulations is to strike the proper balance between the public’s interest in the free dissemination of ideas and information and the public’s interest in effective law enforcement and the fair administration of justice.

Under the new Policy, the Department will continue to employ procedural protections to limit the use of compulsory legal process, recognizing that investigative techniques relating to newsgathering are an extraordinary measure to be deployed as a last resort when essential to a successful investigation or prosecution.

The policies, procedures, and standards governing the use of compulsory process to obtain information from and records of members of the news media, as well as the questioning, arresting, or charging of members of the news media, are set forth in 28 C.F.R. § 50.10. The discussion below is intended to summarize the major provisions of § 50.10. Department attorneys must review and comply with these regulations before obtaining records or information, questioning, arresting, or charging members of the news media.

For Further Information Contact: The Criminal Division’s Office of Enforcement Operations, Policy and Statutory Enforcement Unit (PSEU) can be reached at 202-305-4023 and pseu@usdoj.gov.

1. Statement of Principles
   The Department’s Policy is to strike the proper balance among several vital interests: protecting national security, ensuring public safety, promoting effective law enforcement and the fair administration of justice, and safeguarding the vital role of a free and independent press in the functioning of our democracy.

   The Policy is intended to provide procedural protections, limiting the use of compulsory legal process to obtain information from or records of members of the news media, and providing enhanced authorization requirements and advance notice. The Department views the use of compulsory legal process to obtain information from non-consenting members of the news media as an extraordinary measure and not a standard investigatory practice.

   The Policy is not intended to extend special protections to members of the news media who are targets of criminal investigations or are parties to civil investigations for conduct not based on, or within the scope of, newsgathering activities. [28 C.F.R. § 50.10(a)(1)].

   Nor is the Policy intended to inhibit the ability of law enforcement authorities to engage with members of the news media for the purpose of obtaining the voluntary production or disclosure of records, materials, or information, or to question or interview members of the media on a voluntary basis when such questioning does not concern criminal conduct the member of the news media is suspected of having committed in the course of, or arising out of, newsgathering activities. Such engagement does not require authorization under 28 C.F.R. § 50.10(c)(3)(i) or § 50.10(c)(3)(i).

   Note: Investigative activities pursuant to the Policy may also be subject to the Privacy Protection Act of 1979, 42 U.S.C. § 2000aa.

2. Scope [28 C.F.R. § 50.10(b)]

   1. Covered Individuals and Entities

      The Policy covers news media entities and individuals engaged in lawful newsgathering activities. These terms are not defined in this Policy. Whether an individual or an entity is a member of the news media, and whether the information at issue involves lawful newsgathering are often fact-specific inquiries and should be determined on a case-by-case basis. Because the purpose of this Policy is to protect the lawful newsgathering process, the Attorney General authorization requirement of 28 C.F.R. § 50.10(c)(1) does not apply to demands for commercial, financial, or other information unrelated to the newsgathering function. See 28 C.F.R. § 50.10(c)(3)(ii). Department attorneys should consult with the Criminal Division’s Office of Enforcement Operations when determining whether a target of the proposed compulsory process involves a news media member or the information sought involves lawful newsgathering. Upon such consultation, the Director of the Criminal Division’s Office of Enforcement Operations will determine whether a person or entity is a member of the news media, or whether the information sought relates to lawful newsgathering. The Director of the Office of Enforcement Operations shall notify the Assistant Attorney General of the Criminal Division of any requests for a consultation regarding whether the target of the proposed compulsory process involves a news media member or the information sought involves lawful newsgathering.

      The protections of the Policy do not apply to anyone who is or is reasonably likely to be: (1) a foreign power or an agent of a foreign power, or a member or affiliate of a terrorist organization; (2) committing or attempting to commit terrorism, or providing support to a terrorist organization; or (3) aiding or conspiring in illegal activity with any such person or organization. Members of the Department should consult with the Criminal Division’s Office of Enforcement Operations when there is any question whether a potential member of the news media may be excluded from the Policy’s scope by operation of 28 C.F.R. § 50.10(b)(1)(ii).  Upon such consultation, the Director of the Criminal Division’s Office of Enforcement Operations will determine whether a potential member of the news media is excluded from the Policy’s scope under § 50.10(b)(1)(ii).  The Director of the Office of Enforcement Operations may consult with the National Security Division as necessary.

   2. Covered Law Enforcement Tools and Records.

      The Policy governs the use of subpoenas or similar civil process such as civil investigative demands to obtain materials or testimony from members of the news media and the use of subpoenas or court orders to obtain the media member’s communications or business records from third parties. The Policy also governs applications for warrants to search the premises or property of members of the news media or to obtain news media members’ communications records from third-party service providers. See 28 C.F.R. § 50.10(b)(2).

3. Issuing Subpoenas to Members of the News Media, or Using Subpoenas or Court Orders to Obtain Communications Records or Business Records of a Member of the News Media from Third Parties. [28 C.F.R. § 50.10(c)]
   1. The Attorney General’s authorization is generally required before the issuance of any subpoena to a member of the news media or use of a subpoena or court order to obtain communications records or business records of a news media member from a third party, including use of pen registers and trap and trace devices. Such requests for Attorney General authorization must be approved by the United States Attorney or Assistant Attorney General responsible for the matter. The Department does not consider the requirements of 28 C.F.R. § 50.10 applicable to subpoenas for journalistic materials and records of deceased journalists. The Department also does not consider the requirements of 28 C.F.R. § 50.10 to be applicable to compulsory process directed to divisions, subsidiaries, related corporate entities, and other parts of an entity that are not themselves engaged in newsgathering. In other words, the fact that an entity may have a single division engaged in news gathering does not mean that the entire entity is considered to be News Media.
   2. Exceptions to the Attorney General authorization requirement.
      1. Consent of the Member of the News Media. 
         The United States Attorney or Assistant Attorney General responsible for the matter may authorize the issuance of a subpoena to a member of the news media (e.g., for documents, video or audio recordings, testimony, or other materials) if the member of the news media expressly agrees to provide the requested information in response to a subpoena. In such circumstances, the Office of the United States Attorney or Office of the Assistant Attorney General responsible for the matter shall provide notice to the Director of the Criminal Division’s Office of Enforcement Operations within 10 business days of the authorization of the issuance of the subpoena.

      2. Seeking Information Not Related to Newsgathering Activities. 
         The United States Attorney or Assistant Attorney General responsible for the matter may authorize the issuance of subpoenas to news media entities, including to divisions, subsidiaries, related corporate entities, and other parts of an entity that are not themselves engaged in news gathering, for information unrelated to lawful newsgathering activities; or for information or records relating to personnel not involved in lawful newsgathering activities; or the use of subpoenas or court orders to obtain from third parties communications records or business records of members of the news media who may be perpetrators, victims, or witnesses to crimes or other events unrelated to their lawful newsgathering activities. 

         In such cases, the United States Attorney or Assistant Attorney General responsible for the matter must authorize the use of the subpoena or court order; consult with the Criminal Division regarding appropriate review and safeguarding protocols; and provide a copy of the subpoena or court order to the Director of the Office of Public Affairs and to the Director of the Criminal Division’s Office of Enforcement Operations within 10 business days of the issuance of the subpoena or court order. 

   3. Considerations for the Attorney General in determining whether to authorize the issuance of a subpoena to a member of the news media, or whether to authorize the issue of a subpoena or court order to third parties to obtain the communications records or business records of a member of the news media.

      Department attorneys seeking the Attorney General’s authorization to issue a subpoena to a member of the news media or use a subpoena or court order to obtain communications records or business records of a news media member must submit, through the Criminal Division’s Office of Enforcement Operations, a written request summarizing the facts of the prosecution or investigation, explaining why the information is essential to the investigation or prosecution, describing attempts to obtain the voluntary cooperation of the news media through negotiations and explaining how the proposed subpoena will be fashioned as narrowly as possible to obtain the necessary information while minimizing intrusion and burden. See 28 C.F.R. § 50.10(c)(4).

      1. Criminal and Civil Matters. In criminal matters, there should be reasonable grounds to believe that a crime has occurred, and that the information sought is essential to a successful investigation or prosecution. In civil matters, there should be reasonable grounds to believe that the information sought is essential to the successful completion of the investigation or litigation in a case of substantial importance.
      2. Essential Information. A subpoena or court order should not be used to obtain peripheral, nonessential, or speculative information, and the government should have made all reasonable attempts to obtain the information or records from alternative sources.
      3. Negotiations. The government should pursue voluntary compliance with the affected member of the news media, unless the Attorney General determines that such process would pose a substantial threat to the integrity of the investigation, risk grave harm to national security, or present an imminent risk of death or serious bodily harm.
      4. National Defense or Classified Information. In investigations of unauthorized disclosures of national defense information or of classified information, the relevant Department or agency head may request the Attorney General’s authorization to issue subpoenas to members of the news media. The Attorney General may also authorize the Department, in such investigations, to use subpoenas and other compulsory process to obtain communications records or business records of a member of the news media.
      5. Narrowly drawn. The proposed subpoena or court order should be narrowly drawn and should give reasonable and timely notice of the demand. If appropriate, investigators should use search protocols to minimize intrusion into newsgathering activities unrelated to the investigation.

4. Applying for Warrants to Search News Media Member’s Premises or Property, or Communications Records. [28 C.F.R. § 50.10(d)]

   Except in cases involving exigent circumstances, Department attorneys must obtain the authorization of the Attorney General to apply for a warrant pursuant to 28 C.F.R. § 50.10(d) to search a news media member’s premises or property or communications records. Such requests must first be approved by the United States Attorney or Assistant Attorney General responsible for the matter. Department attorneys seeking the Attorney General’s authorization to apply for a warrant pursuant to 28 C.F.R. § 50.10(d) should submit, through the Criminal Division’s Office of Enforcement Operations, a written request addressing the considerations referenced in 28 C.F.R. § 50.10(d)(3) as well as proposed search protocols pursuant to 28 C.F.R. § 50.10(d)(4).

   The Department does not consider the requirements of 28 C.F.R. § 50.10 to be applicable to search warrants to search divisions, subsidiaries, related corporate entities, and other parts of an entity that are not themselves engaged in news gathering. In other words, the fact that an entity may have a single division engaged in news gathering does not mean that the entire entity is considered to be News Media.

5. Notice to Affected Member of the News Media. [28 C.F.R. § 50.10(e)]

   When the Attorney General has authorized the use of a subpoena, court order, or warrant to obtain a news media member’s communications or business records from a third party, the affected media member shall be given reasonable and timely notice before the use of the subpoena, order, or warrant, unless the Attorney General determines such notice would pose a substantial threat to the integrity of the investigation, risk grave harm to national security, or present an imminent risk of death or serious bodily harm.

   If such exception applies, the United States Attorney or Assistant Attorney General responsible for the matter shall provide notice of the subpoena, order, or warrant to the affected member of the news media as soon as it is determined that such notice will no longer pose a substantial risk. In any event, such notice shall occur within 45 days of receipt of information pursuant to subpoena, order, or warrant. The Attorney General may authorize one additional delay of 45 days. The Attorney General may authorize additional delays beyond the 90-day period only where the affected member of the news media is suspected of criminal conduct entirely outside the scope of newsgathering and the additional delay is necessary to preserve the integrity of an ongoing criminal investigation.

   The United States Attorney or Assistant Attorney General responsible for the matter shall provide a copy of the notice 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 the notice is provided to the affected member of the news media, and immediately after such notice is, in fact, provided to the affected member of the news media.

6. Questioning, Arresting, or Charging Members of the News Media. [28 C.F.R. § 50.10(f)]

   No member of the Department shall question a news media member about a possible offense that he or she is suspected of having committed in the course of, or arising out of, the coverage or investigation of news, or while engaged in the performance of duties undertaken as a member of the news media without the Attorney General’s express authorization. Nor may a member of the Department arrest a news media member, absent exigent circumstances (e.g., to address an imminent threat of harm), or seek a warrant for the arrest of a news media member over any offense similarly related to newsgathering without the Attorney General’s express authorization.

   No Department attorney shall present information to a grand jury seeking a bill of indictment against a news media member for any suspected offense committed related to newsgathering without the express authorization of the Attorney General.

   In all such cases, notice must also be provided to the Director of the Office of Public Affairs.

   Members of the Department should consult with the Criminal Division’s Office of Enforcement Operations prior to questioning a potential member of the news media who is suspected of a criminal offense. The Director of the Office of Enforcement Operations will determine whether the proposed questioning requires authorization by the Attorney General.  In all other circumstances, including when a potential member of the news media will be questioned solely in his or her capacity as a victim of or witness to criminal offenses committed by third parties, no consultation is required.

   Members of the Department seeking the Attorney General’s authorization to question, arrest, or charge a potential member of the news media must submit, through the Criminal Division’s Office of Enforcement Operations, a written request summarizing the facts of the prosecution or investigation.

7. Exigent circumstances. [28 C.F.R. § 50.10(g)]

   A Deputy Assistant Attorney General for the Criminal Division may authorize the use of a subpoena or court order or the questioning, arrest, or charging of a member of the news media if he or she determines that the exigent use of such law enforcement tool or technique is necessary to prevent or mitigate an act of terrorism; other acts that are reasonably likely to cause significant and articulable harm to national security; death; kidnapping; substantial bodily harm; conduct that constitutes a specified offense against a minor, or an attempt or conspiracy to commit such a criminal offense; or incapacitation or destruction of critical infrastructure.

   A Deputy Assistant Attorney General for the Criminal Division also may authorize an application for a warrant, as described in subsection (d) above, if there is reason to believe that the immediate seizure of the materials at issue is necessary to prevent death or serious bodily injury to a human being.

   In such cases, the United States Attorney or Assistant Attorney General responsible for the matter shall submit the request for exigent Deputy Assistant Attorney General authorization through the Criminal Division’s Office of Enforcement Operations, and provide to the Attorney General and to the Director of the Office of Public Affairs a statement containing the information that would have been given in requesting prior authorization within 10 business days.

[updated September 2025]

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]