New California Law Gives Journalists 5-Day Warning of Records Seizure by State

Saturday, October 12, 2013

California has adopted a new law requiring the government to give journalists five days notice before seizing their phone or other records from third parties.


Existing state law provides for a five-day warning when journalists are subpoenaed in civil or criminal proceedings. But Senate Bill 558, which Governor Jerry Brown (D) signed last week, calls for the same amount of notice if an agency is trying to obtain a reporter’s phone records through a subpoena to a telecommunications company, for example.


Sponsored by the California Newspaper Publishers Association, the legislation was crafted after the U.S. Department of Justice used a secret subpoena last year to retrieve two months worth of phone records belonging to the Associated Press through third-party vendors, including phone companies and Internet service providers.


The five-day notice is intended to give journalists and publishers time to challenge the subpoena or narrow the scope of information the third party would be required to disclose.


The new law, which was drafted by Democratic state Sen. Ted Lieu of Torrance, also requires the notice to include an explanation of why the government wants the records and why it can’t obtain the information through alternate sources.


An exception was included in the bill whereby the government could skip the five-day notice if doing so would pose a danger to someone's life or harm an ongoing criminal investigation.


The law applies only to subpoenas issued in California, and not those issued at the federal level. It will take effect on January 1.

-Noel Brinkerhoff


To Learn More:

California Goes to Bat for Shielding Media's Phones (by Elizabeth Warmerdam, Courthouse News Service)

California Governor Signs Law Expanding Protections for Journalists (by Sharon Bernstein, Reuters)

Justice Dept. Secretly Obtained Phone Records of Associated Press…Obama Crosses the Freedom of the Press Line (by Noel Brinkerhoff and David Wallechinsky, AllGov)

FBI Violated Law in Obtaining Phone Records of Journalists and Others (by Noel Brinkerhoff, AllGov)


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