DOJ's New Restrictions On Surveilling Journalists Contain Exception For National Security Letters

from the super-secret-loopholes dept

In 2013, it was revealed the DOJ had added First Amendment-trampling to its always-cavalier treatment of the Fourth Amendment by gathering journalists' phone records. Under the guise of investigating leaks, the DOJ crossed over into totalitarian territory. Following the backlash, the DOJ "revised" its rules on surveilling the press.

How much revision actually took place is still a secret. The Freedom of the Press Foundation sued the DOJ last year for its refusal to release its secret rules on surveilling journalists. The DOJ released some documents but they were redacted into near-complete opacity, prompting the Foundation's FOIA litigation.

According to information obtained since the meeting between then-DOJ head Eric Holder and two of the targeted press entities (AP and Fox), limitations were placed on the agency's use of subpoenas to obtain information on journalists. But these new limits are mostly meaningless because they include a sizable loophole for the FBI's favorite paperwork. David McGraw at Just Security has more details.

The revised guidelines, released early in 2015, were intended to strengthen the protection afforded news gathering.

Fairly read, the revised guidelines do that — but even as the revisions were being hammered out in discussions between DOJ and representatives of the press, DOJ made clear that the guidelines would not apply to NSLs. It is a carve-out that cuts deeply.

It is not just that NSLs, typically used to obtain communication records from third parties, have none of the judicial oversight that attends to subpoenas. There is also the damaging impact of secrecy. An important element of the DOJ subpoena guidelines is providing news organizations with notice when their records are sought, subject to some specified exceptions. Notice gives an opportunity not only to make legal objections in court, but also to invite public scrutiny of government overreach.
The use of NSLs means everything is hidden and will remain so for years. Those targeted won't be informed of the government's actions until years later, if at all. The FBI has a long history of abusing NSLs, and there's no reason to believe the new guidelines the DOJ put in place will act as a deterrent towards future abuse.

NSLs operate in an accountability black hole thanks to their inherent secretive nature. The ongoing lawsuit against the DOJ has resulted in more released documents, but very little that details the use of NSLs for spying on journalists.
DOJ has said that the NSLs are “subject to an extensive oversight regime.” But it is impossible to know whether the kinds of procedures baked into the subpoena guidelines — for instance, a showing by the prosecutor of proven need and a lack of alternative ways of getting the information sought — are mirrored in NSL guidelines. If they are not, there is every incentive for investigators to look to NSLs and avoid the restrictions of the subpoena process. (In my experience, leak investigations overwhelmingly arise from reporting about national security, making them NSL-eligible.) But the classification of the NSL rules takes meaningful discussion of even such a threshold concern off the public agenda.
One of the few things that can be confirmed from the released documents is that the FBI believes the new guidelines have zero effect on National Security Letters. Beyond that, the DOJ has released nothing that would further clarify the rules put into place after its surveillance efforts were exposed. The Freedom of the Press Foundation has posted some of the documents it has liberated via litigation and they contain "useful" information like:


Without further information, the released documents appear to show the FBI is issuing NSLs to obtain journalists' records. At the very least, they confirm the FBI will use NSLs to route around restrictions. And as long as it does that, the First and Fourth Amendment will just have to take a backseat to the national security concerns cited in documents no one will be able to examine for years to come.

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Filed Under: doj, journalists, loopholes, national security letters, nsls, surveillance

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  1. icon
    That One Guy (profile), 25 Jan 2016 @ 1:34am

    Well, that's one worry addressed at least

    DOJ has said that the NSLs are “subject to an extensive oversight regime.”

    'Extensive oversight', now where have I heard that phrase used before... ah yes, when the NSA and it's defenders were claiming that everything the agency did was perfectly acceptable, due to the extensive oversight in place to keep them in line...

    Before it turned out that those providing 'oversight' knew only what the NSA felt like telling them, and had neither the power nor interest to force the NSA to hand over any data that it didn't want to.

    But I'm sure this time the 'extensive oversight' will be totally legitimate, and serve to keep NSL abuse to a minimum.

    reply to this | link to this | view in thread ]

  2. identicon
    Yes, I know I'm commenting anonymously, 25 Jan 2016 @ 3:58am


    The FBI may not spy op journalists except when the FBI wants to spy on journalists (and does so in secret, which they may).

    reply to this | link to this | view in thread ]

  3. identicon
    Anonymous Coward, 25 Jan 2016 @ 4:00am

    We will follow the constitution except when we choose not to.

    The US government

    reply to this | link to this | view in thread ]

  4. identicon
    AJ, 25 Jan 2016 @ 4:04am

    Journalists that are working on sensitive stories need to make it as difficult as possible. Great encryption on all devices, the laptop with all their notes never connects to the internet and doesn't have WIFI, disposable non-smart phones,don't develop a routine.. Jez.. We've turned our Journalists into drug dealers lol.

    reply to this | link to this | view in thread ]

  5. identicon
    Anonymous Coward, 25 Jan 2016 @ 4:16am

    NSA = No Such Agency
    NSL = No Such Law

    reply to this | link to this | view in thread ]

  6. identicon
    Quiet Lurcker, 25 Jan 2016 @ 5:16am

    From the law office of CENSORED
    To Justice Department
    Re NSL documents purported to seek certain information from the press

    Dear sir:

    Please be advised our client will not be complying with any further requests of this nature.

    Your request is unconstitutional on its face and so carries with it no obligation to comply. We refer you to the ruling in CENSORED, which held that CENSORED.

    The information requested touches on possible criminal behavior on the part of CENSORED and so must be kept under our care and custody until such time as we turn it over to CENSORED.

    Signed CENSORED

    reply to this | link to this | view in thread ]

  7. identicon
    David, 25 Jan 2016 @ 5:19am

    Just imagine playing chess against Holder

    "That move is not allowed!" "It is, too." "Well, here is the official rule book. Show me where it is allowed." "It's allowed in the appendix I've written." "Show me that appendix." "No. It would be no use to you, anyway. The rules in the appendix are only allowed for me." "What keeps me from writing my own appendix?" "You can't write an appendix to the official rule book. Are you out of your mind? It would not be chess then."

    Does anybody have an idea what the point of a Constitutional Republic was in the first place?

    reply to this | link to this | view in thread ]

  8. identicon
    The Joker, 25 Jan 2016 @ 6:02am

    bowel evacuation

    This country needs an enema!

    reply to this | link to this | view in thread ]

  9. identicon
    David, 25 Jan 2016 @ 6:05am


    If they weren't criminals, they would have nothing to hide from the government. If they are serving as a mouth piece to terrorists, whistleblowers and other traitors, they cannot expect the government to remain a step behind when they try committing their nefarious actions under cover of the Constitution. The Constitution was never intended for keeping the good guys out of the bad guys' affairs.

    Where would the Soviet Union stand were it not for the compassion of Comrade Stalin?

    Oh wait. I think I packed the wrong script from the handbook for spacetime travellers. But then I think I can make it work with some fairly cosmetic changes.

    The times, they are not a-changing.

    reply to this | link to this | view in thread ]

  10. identicon
    Anonymous Coward, 25 Jan 2016 @ 7:16am

    in other words, the Totalitarian USA is still alive and kicking, and the 'land of opportunity' only applies to the security forces!!

    reply to this | link to this | view in thread ]

  11. identicon
    Anonymous Coward, 25 Jan 2016 @ 9:08am

    We all know how covering up criminal actions by the government is "national security" as well as punishing those that refuse to stay silent about such things and try to expose said criminals to the publics eye.

    reply to this | link to this | view in thread ]

  12. identicon
    Anonymous Coward, 25 Jan 2016 @ 9:09am


    Amazing people are not revolting over that fact, that they have no rights if those in charge decide they get in their way of ruling.

    reply to this | link to this | view in thread ]

  13. identicon
    Anonymous Coward, 25 Jan 2016 @ 9:11am

    Re: Just imagine playing chess against Holder

    probably something where the head of the DoJ goes to jail for committing perjury.

    reply to this | link to this | view in thread ]

  14. identicon
    AnonCow, 25 Jan 2016 @ 9:41am

    This is called: "The Terrorists Have Won Clause"

    reply to this | link to this | view in thread ]

  15. identicon
    Anonymous Coward, 25 Jan 2016 @ 10:06am

    So much for the most transparent administration in history

    Nuff said

    reply to this | link to this | view in thread ]

  16. identicon
    JB Smith, 25 Jan 2016 @ 11:20am

    biochips for thought surveillance

    The American Reinvestment and Recovery Act and the brain initiative are the worst scams ever perpetrated on the American people. Former U. S. Surgeon General Regina Benjamin Warns: Biochips Hazardous to Your Health: Warning, biochips may cause behavioral changes and high suicide rates. State Attorney Generals are to revoke the licenses of doctors and dentists that implant chips in patients. Chip used illegally for GPS, tracking, organized crime, communication and torture. Virginia state police have been implanting citizens without their knowledge and consent for years and they are dying! Check out William and Mary’s site to see the torture enabled by the biochip and the Active Denial System. See Terrorism and Mental Health by Amin Gadit or A Note on Uberveillance by MG & Katina Michael or
    Safeguards in a World of Ambient Intelligence by Springer or Mind Control, Microchip Implants and Cybernetics. Check out the audio spotlight by Holosonics.
    The truth is the biochip works like a sim card. It received pulsed modulated laser beams and millimeter wave which it converts into electromagnetic waves that your brain interprets into digital images and sound. It then takes what your brain sees and hears and converts electromagnetic waves into digital and acoustic waves that a computer translates into audio and video. In other words, it allows law enforcement to see what you see, hear what you hear and communicate directly with your brain.
    “Former Defense Advanced Research Projects Agency (DARPA) director and now Google Executive, Regina E. Dugan, has unveiled a super small, ingestible microchip that we can all be expected to swallow by 2017. “A means of authentication,” she calls it, also called an electronic tattoo, which takes NSA spying to whole new levels. She talks of the ‘mechanical mismatch problem between machines and humans,’ and specifically targets 10 – 20 year olds in her rant about the wonderful qualities of this new technology that can stretch in the human body and still be functional. Hailed as a ‘critical shift for research and medicine,’ these biochips would not only allow full access to insurance companies and government agencies to our pharmaceutical med-taking compliancy (or lack thereof), but also a host of other aspects of our lives which are truly none of their business, and certainly an extension of the removal of our freedoms and rights.” Google News
    The ARRA authorizes payments to the states in an effort to encourage Medicaid
    Providers to adopt and use “certified EHR technology” aka biochips. ARRA will match Medicaid $5 for every $1 a state provides. Hospitals are paid $2 million to create “crisis stabilization wards” (Gitmo’s) where state police torture people – even unto death. They stopped my heart 90 times in 6 hours. Virginia Beach EMT’s were called to the scene. Mary E. Schloendorff, v. The Society of New York Hospital 105 N. E. 92, 93 (N. Y. 1914) Justice Cardozo states, “every human being of adult years and sound mind has a right to determine what shall be done with his own body; and a surgeon who performs an operation without his patient’s consent, commits an assault, for which he is liable in damages. (Pratt v Davis, 224 Ill. 300; Mohr v Williams, 95 Minn. 261.) This case precedent requires police to falsely arrest you or kidnap you and call you a mental health patient in order to force the implant on you.
    You can also be forced to have a biochip if you have an infectious disease – like Eboli or Aids. Coalition of Justice vs the City of Hampton, VA settled a case out of court for $500,000 and removal of the biochip. Torture is punishable by $1,000 per day up to $2 million; Medical battery is worth $2.05 million. If you can find an attorney or judge with integrity. They told my family it was the brain initiative. I checked with the oversight board, and it is not! Mark Warner told me it was research with the Active Denial System by the College of William and Mary, the USAF, and state and local law enforcement. It is called IBEX and it is excruciating.

    reply to this | link to this | view in thread ]

  17. identicon
    Anonymous Coward, 25 Jan 2016 @ 12:20pm

    Alternate article title:

    FBI Plans to Increase NSLs Issued by an Order of Magnitude in 2016

    reply to this | link to this | view in thread ]

  18. identicon
    David, 25 Jan 2016 @ 2:21pm

    Re: bowel evacuation

    Well, today there was another article how the NSA was unhappy about their portrayal in the gut-wrenching spy thriller "Enema of the State".

    I can imagine just how they were being portrayed. Just think of all the obvious twists and turns the script likely has pursued before the splattering finale.

    Wait. Never mind.

    reply to this | link to this | view in thread ]

  19. identicon
    Grammar nazi, 25 Jan 2016 @ 4:31pm


    The root of "surveillance" is "survey", not "surveil". the headline should read "DOJ's New Restrictions on SURVEYING Journalists..."

    reply to this | link to this | view in thread ]

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