Leak Reveals Secret FBI Guidelines That Basically Give Them Free Rein To Spy On Journalists And Sources

from the not-cool,-doj dept

Eleven months ago, we wrote about a lawsuit filed by the Freedom of the Press Foundation seeking to get a copy of the DOJ's infamous new rules for spying on journalists. The new rules came about after it had come out that the DOJ had spied on Associated Press reporters as well as lied to a court to claim that Fox News reporter James Rosen was a co-conspirator in a leak investigation. To date, the DOJ has steadfastly refused to reveal the rules.

Thankfully, someone has now leaked the rules, or at least the 2013 version of some of the rules, which show that, contrary to what then Attorney General Eric Holder had suggested, it's still ridiculously easy for the FBI to spy on reporters and their sources in trying to hunt down a leak. In fact, it appears that these rules, around the use of NSLs are actually separate from the rules that Holder was talking about -- meaning that there's an entirely separate path for the DOJ to spy on journalists. The rules show that the FBI can just issue a National Security Letter (NSL), the mechanism that the FBI has been known to regularly abuse without consequence and which it's trying to expand. The "process" by which the media is supposedly protected under these new rules is that if someone in the DOJ is seeking an NSL to get phone records of someone in the media, they need to get some permission from someone else in the DOJ first:
This is the fox watching the henhouse. These are not restrictions, these are just the DOJ getting to ask itself if it really wants to spy on these journalists, and the DOJ telling itself "sure, go ahead." There's a further exception that if someone is a member of the media, but the FBI "suspects" they're an intelligence officer or affiliated with a foreign intelligence service, "no additional approval requirements" are needed. So, as with the Rosen case, the FBI can just declare him a "co-conspirator" and voila, no approval necessary.

As the Freedom of the Press Foundation explains in response to this leak, this completely undermines the claims by the DOJ that there were strict controls on spying on journalists:

First, the rules clearly indicate—in two separate places—that NSLs can specifically be used to conduct surveillance on reporters and sources in leak investigations. This is quite disturbing, since the Justice Department spent two years trying to convince the public that it updated its “Media Guidelines” to create a very high and restrictive bar for when and how they could spy on journalists using regular subpoenas and court orders. These leaked rules prove that the FBI and DOJ can completely circumvent the Media Guidelines and just use an NSL in total secrecy.

Second, the DOJ told the New York Times in 2013 that, despite NSLs being exempt from the media guidelines, they were still used under a “strict legal regime.” Well, the “strict legal regime” here is basically non-existent. The only extra step the FBI has to go through to spy on journalists with an NSL—besides the normal, lax NSL procedures, which they have flagrantly and repeatedly violated over the past decade—is essentially get the sign off of a superior in the Justice Department. That’s it! They don’t have to even go through the motions for following any of the several rules laid out in the DOJ media guidelines: like get the Attorney General to sign off, exhaust all other means of investigation, alerting and negotiating with the affected media organization, making sure what is being sought is essential to the investigation, etc.

There's a separate important question here too: why were these rules kept secret? There is no national security reason to keep this secret. It does not reveal anything that helps anyone avoid surveillance. As Freedom of the Press Foundation notes, it appears the only reason to keep this secret is to avoid the embarrassment.
The information that has been redacted here by the Justice Department – and which they are fighting to keep secret in court – is incredibly mundane. The fact that the FBI has to get another person in the bureaucracy to sign off on a particular investigation should not be a state secret, nor would it remotely harm any ongoing investigation, nor would “tip off” any alleged criminals to how to evade surveillance.

The only reason to keep these rules secret, it seems, is that it’s incredibly embarrassing for the FBI to admit that they can use NSLs in leak cases to go after journalists. The fact that the FBI and DOJ are keeping these rules is outrageous, and they should use this opportunity to officially release the rules—and any updates to them—immediately.
The Foundation is also planning to continue its lawsuit for two reasons. First, as mentioned in the quote above, it wants the DOJ to officially release the rules, and, more importantly, it believes that the rules may have been updated since these 2013 rules were published.

The whole thing, once again, shows just how ridiculous this administration has been concerning protecting the rights of journalists to talk to confidential sources. "The most transparent administration in history" once again seems to be the exact opposite. Undermining the freedom of the press and spying on reporters and their sources is shameful. It's the activity of tyrants and insecure dictators, not democratically elected governments.
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Filed Under: doj, fbi, journalists, national security letters, nsls, oversight, surveillance
Companies: freedom of the press foundation


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  1. icon
    JonC (profile), 1 Jul 2016 @ 6:02pm

    Since they want to revise the NSL rules, maybe they should be revised to forbid their use for this purpose. Anyone want to bet that Congress will act in support of the people they're supposed to represent? I'll offer very good odds...

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