Stronger Protections Needed to Close Third-Party Subpoena Loopholes

[...]a California district court is the only federal court to find that not only was the journalist protected by a reporter's privilege but also, by extension, the journalist's records in the hands of a third party were also protected.18 In Feist, a counterclaimant sought records from a journalist in connection with a defamation claim against the journalist's source (the journalist was not a party to the lawsuit) and from the Electronic Frontier Foundation (EFF), also in connection with the defamation claim.19 A magistrate judge of the district court quashed the subpoena against the journalist pursuant to a reporter's privilege20 but did not quash the subpoena against EFF. "21 DOJ Attorney General Media Guidelines In 2013, in the wake of news that the government had obtained telephone records from more than 20 Associated Press phone lines and obtained a search warrant for a Fox News reporter's email - all without the journalists' knowledge - then-Attorney General Eric Holder announced plans to revise the Department of Justice's media subpoena guidelines.22 One of the most significant changes to come from revising the guidelines was to reverse the presumption concerning notice: previously, the government's default was not to give notice to journalists of third-party subpoenas unless it would not threaten an investigation.23 The revised guidelines flipped the presumption so that notice is required in all circumstances, and only the Attorney General may determine, "for compelling reasons," that notice may be withheld in certain circumstances.24 While the change to the guidelines was undoubtedly a step in the right direction, the guidelines are policy, not law. Federal Shield Bill While journalists remain without a shield law at the federal level, the last federal shield bill, which was introduced in 2013,26 contained provisions explicitly extending, with limited exceptions, the privilege to "any document or other information from the account of a" journalist in the hands of a third-party service provider.27 The bill also required notice to the journalist and opportunity to be heard,28 except where a judge determines by clear and convincing evidence that notice "would pose a clear and substantial threat to the integrity of a criminal investigation, would risk grave harm to national security, or would present an imminent risk of death or serious bodily harm. First Amendment interest? in third-party records? and that ?the subpoena practices reflected in this rec