When Can The FBI Use National Security Letters To Go After Journalists? Why, That's Classified!

from the because-of-course-it-is dept

Two weeks ago, the DOJ Inspector General released a report on the FBI’s use of National Security Letters (NSLs)?the controversial (and unconstitutional) surveillance instruments used to gather personal information of Americans without any prior oversight from a judge. In a little-noticed passage buried in the report, the IG describes how NSLs have been used on journalists in the past, and indicates that the FBI can currently circumvent the Justice Department’s media guidelines to do so in the future.

When and precisely how can they do so? Well, apparently that’s classified.

First, some background: In July, after a torrent of criticism that the Justice Department (DOJ) was targeting reporters in the wake of the Associated Press and Fox News scandals, Attorney General Eric Holder issued new guidelines for DOJ that tightened the rules for when they could secretly obtain records from reporters. Notably, the guidelines excluded National Security Letters.

This is critical because past IG reports, as well as the new one, have harshly criticized the FBI for circumventing the old media guidelines and using NSLs to gain access to reporters’ records on at least three occasions. Earlier this year Pulitzer Prize winner Barton Gellman revealed his telephone records had once been targeted by an NSL.

As the New York Times reported when the new guidelines were issued in July:

There is no change to how the F.B.I. may obtain reporters’ calling records via “national security letters,” which are exempt from the regular guidelines. A Justice spokesman said the device is “subject to an extensive oversight regime.”

What is the “extensive oversight regime”? The IG report discusses it, but the FBI has brazenly redacted the whole thing. From page 178 of the new report:

The above passage is referencing the FBI’s response to the IG’s criticism of a leak investigation in which a journalist’s telephone records were accessed with an NSL. 28 C.F.R. ? 50.10 refers to the media guidelines. Reading between the redactions, it seems that Attorney General approval may required in some classified circumstances but not in others. The FBI thinks those circumstances should be secret.

Worse, it seems the FBI has so far ignored another IG recommendation regarding the use of NSLs against reporters. From page 192 of the report:

Unfortunately, the redactions in this section make it nearly unintelligible, but it’s clear from the reference to the DOJ’s media guidelines in the second paragraph that they are writing about leak investigations and journalists.

It should be noted from the very first footnote of the 196-page report that the IG strongly objected to many of the redactions within the report, including both information that was made public in previous reports and information they “believe is important to the public’s understanding of the FBI’s compliance with NSL requirements.”

And that’s the crux of the issue: how can the public be expected to have confidence in a so-called “extensive oversight regime”, without any transparency or inkling of what it is? All too often the government has expected us to trust that such authorities are not being abused, while their own investigations continually uncover problems with compliance.

Beyond the fact that the whole NSL statute was ruled unconstitutional last year (the ruling is on hold pending appeal), journalists?at the bare minimum?deserve to know when the FBI thinks it can secretly conduct surveillance on them without court approval. As the IG states, this has significant First Amendment implications and it’s a travesty that the FBI continues to keep their policies for spying on the press a secret.

Reposted from Freedom of the Press Foundation

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Comments on “When Can The FBI Use National Security Letters To Go After Journalists? Why, That's Classified!”

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Ninja (profile) says:

Why are we still talking about journalists as a profession when it is obvious that anybody can be a journalist in an event? And why are we talking about protection to the journalists specifically when nobody should be subject to those NSL? Not mentioning the fact that they are CLEARLY unconstitutional because they simply bypass the judicial branch they were already RULED unconstitutional and for me this alone is bad enough to suspend them even if it’s waiting appeals. The fact that such mechanism exist is in itself deeply troubling.

We need more whistleblowers.

Anonymous Coward says:

Re: Re: Re:3 Re:

Exactly. Until the quality of life for the middle class is directly affected, there will never be enough support for actual change. Everyone is too fucking lazy and too fucking comfortable to give a shit that the Constitution (that thing that they maybe read in their high school senior history class) is being shit on daily.

Anonymous Coward says:

Re: Re: Re: Re:

Actually, I’d rather go with whistleblowers. The ensuing outrage of repeated violations coming to light will take care of the punishment. The judges will frequently not punish themselves.

Are you sure? History shows that revelations of repeated violations tend to make the general public stop caring — any signal, when repeated for too long, becomes interpreted as noise. For the most part, people have already stopped caring about Snowden.

The only point at which outrage will start is when people “just like you” are directly impacted in an easily measurable way. The only time that outrage will move people to action is when it moves from “just like you” to “you”. When decision makers start getting jailed by other decision makers, you’ll start to see the fur fly — that, or when the middle class crumbles and creature comforts are suddenly hard to come by.

art guerrilla (profile) says:

Re: Re:

thank you, ninja, i have been beating this drum for a while: journalists don’t have ‘superior’ rights to us regular schmoes, WE ALL have those same rights…
reporters are merely PROXIES for us, representing what we could do if we had the time, inclination, and resources to maintain ourselves as an informed electorate…
which is -of course- the fundamental conflict between Empire and us: The They ™ do NOT want us to be an informed electorate, they want us to be ignorant, and at each other’s throats, not stretching the necks of the 1%…

Anonymous Coward says:

Re: Re: Feeling sorry for the journalists?

Eh no… in fact they are going to be watched! Because frenemies are very real and a person in power with the desire to monitor people like this are paranoid as pure hell and you damn sure better believe they will be watching their friends to make sure they STAY FRIENDS!

They are simply going to not act against their friends when they do something wrong… much like how the Democratic and Republican parties operate with the absolute blessings of the public. If we do wrong… sweep it under the rug, down play it, ignore it. If they do something we don’t agree with or wrong, scream, yell, riot, or maybe throw the guilty or even innocent into jail as needed!

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