U.S. Immigration and Customs Enforcement (ICE) today announced a new policy that will adjust how the agency determines the issuance of administrative subpoenas to members of the news media. The policy, “Use of Compulsory Investigative Tools to Obtain Information or Records Related to the Journalistic Activities of Members of the News Media,” is designed to appropriately balance the interests of protecting national security, public safety, and border security, while safeguarding press freedoms.
“The use of investigative tools to obtain information or records related to the journalistic activities of members of the news media is not a standard ICE investigative practice,” said ICE Acting Director Tae D. Johnson. “Under this new policy, we are taking steps to protect free speech and individuals’ rights under the First Amendment, while continuing to focus ICE resources on individuals who pose a threat to national security, public safety, and border security.”
The ICE Deputy Director must approve the use of any compulsory investigative tool, including administrative and judicial subpoenas, or court orders, that seeks to obtain or may result in the disclosure of information or records related to the journalistic activities of members of the news media. In the event that the ICE Deputy Director approves the use of a compulsory investigative tool, the affected member of the news media shall be given advance notice before the compulsory investigative tool is utilized, unless doing so would pose a clear and substantial risk to the investigation, national security, or the life and safety of the individual.
The use of a compulsory investigative tool should only be approved where there is reason to believe that a crime has been committed and the information or records related to the journalistic activities of the member of the news media are essential to the investigation and following attempts by ICE to first obtain the essential information from alternative, non-media sources. ICE must also have made reasonable attempts to obtain the information or records voluntarily from the relevant member of the news media unless compelling reasons exist against taking this action.
In addition to the use of any compulsory investigative tool, such as administrative and judicial subpoenas, court orders, and certain applications for search warrants, the policy also applies to applications for warrants under Federal Rule of Criminal Procedure 41 to search premises or property where such a search may lead to information or records regarding the journalistic activities of a member of the news media. The directive also requires that officers and agents receive annual training regarding the policy’s requirements.
The policy was signed and implemented as directed by the 2022 Consolidated Appropriations Act.