The DOJ's Rules For Spying On Journalists Get A Bit Flimsy When It Reaches The FISA Court

from the the-first-amendment-matters dept

Back in the spring of 2013, just a month or so before Ed Snowden started revealing all sorts of surveillance shenanigans, there was another important revelation: the Obama DOJ had gone way overboard in spying on journalists, including grabbing the phone records of some AP reporters (without letting them know) and, even worse, telling a court that a Fox News reporter was a "co-conspirator" with a leaker in order to get his phone and email records.

The Obama administration's war on the press has been well documented on this site, with many in the press highlighting how he was the most secretive -- not to mention the most aggressive in abusing the Espionage Act to target leakers and journalists more times than every other President combined prior to him. Once those two stories above came out, the DOJ initially promised to create new guidelines, though, when those guidelines came out, they seemed pretty limited and left a lot of avenues open for the government to spy on journalists, including using National Security Letters -- the meaningless "letters" the FBI/DOJ often hands out like post-it notes, demanding all sorts of info with zero due process, and frequently with an indefinite gag order.

Back in 2015, we noted that the Freedom of the Press Foundation was suing the DOJ demanding the details of the rules used around those national security letters, given that the DOJ didn't want to release them. Earlier this week, the Freedom of the Press Foundation stated that (thanks to the lawsuit), the DOJ has now revealed its rules for seeking FISA Court orders spying on journalists, which are different than its rules for collecting general information from journalists (and different than the rules for the FBI to use NSLs, which is still secret).

As Trevor Timm, Freedom of the Press's executive director, points out, the rules revealed here are "much less stringent" than the (already not that stringent) rules the DOJ came out with in 2015. Basically, the rules state that if the DOJ wants to get a FISC order on a journalist... it has to get approval from the Attorney General or Deputy Attorney General. That's much less than the regular DOJ guidelines that involve a multi-part test to make sure that surveillance of the journalist is actually critical to the investigation and not simply a shortcut to info (or, worse, a way to harm journalistic sources).

If you can't read that, it just says:

This memorandum directs the National Security Division ("NSD") to implement the following procedures that are designed to ensure that the Attorney General ("AG") or Deputy Attorney General ("DAG") reviews those FISA applications targeting known media entities or known members of the media, so that review of such FISA applications occurs at even higher levels than otherwise permitted by FISA and existing AG orders.

And some may argue that having to escalate such FISA applications to the tippy-top of the DOJ represents some level of oversight, that oversight only goes as far as you can trust the Attorney General. And when's the last time we had an Attorney General anyone actually trusted (I can't ever remember having such an AG...). Indeed, our current AG, Jeff Sessions has publicly stated that he wants to prosecute more journalists and has suggested that he's even less interested in balancing the careful interests and rights of journalists than his predecessors.

And, of course, we still have no idea what rules the FBI uses for its NSLs. However, as Timm points out, it's pretty ridiculous that the FISC rules have now been declassified but the FBI's NSL rules remain secret:

If these rules can now be released to the public, why are the FBI’s very similar rules for targeting journalists with due process-free National Security Letters still considered classified? And is the Justice Department targeting journalists with NSLs and FISA court orders to get around the stricter “media guidelines”?


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  • identicon
    stine, 20 Sep 2018 @ 12:17pm

    Unless they're foreign journalists....

    Why the hell would the FISC be the right venue? I'd expect it to be the federal court in the journalist's home state, or at worst, whereever their home office is.

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

    • icon
      Bamboo Harvester (profile), 20 Sep 2018 @ 1:17pm

      Re: Unless they're foreign journalists....

      That struck me as odd too.

      But the part about requiring the AG or Deputy AG literally sign off on a FISC request I see as an improvement over the "jump through hoops committee" currently in place, as now it attaches a NAME to the request - which means liability is clear in cases of abuse.

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

  • identicon
    Anonymous Coward, 20 Sep 2018 @ 4:32pm

    some may argue that having to escalate such FISA applications to the tippy-top of the DOJ represents some level of oversight

    And some might argue that when your boss tells you to do something, having to ask your boss whether you should, in fact, do the thing is the opposite of oversight.

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

  • identicon
    Anonymous Coward, 20 Sep 2018 @ 5:53pm

    If a secret will cause the people to riot, its not in our intere

    The FBI using secret rules for NSFs means that they know their rules won't stand up to scrutiny and they are operating outside of the law.

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

  • identicon
    spodula, 21 Sep 2018 @ 12:42am

    Rules?

    I thaught they were only guidelines, with Guideline #1 being "Dont be so obvious that you get caught and we have to hang you out to dry."

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

  • identicon
    Smartassicus the Roman, 21 Sep 2018 @ 4:55pm

    No. No. No.

    You're way off base here. There were no scandals under the Obama administration, remember? Sheesh, get with the program, y'all.

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

    • identicon
      Wendy Cockcroft, 24 Sep 2018 @ 7:15am

      Re: No. No. No.

      No sexual scandals. Nothing to see here, move along.

      As for droning, surveillance, and persecution of whistleblowers, he expanded the Bush post 9/11 programs, and then some. Meanwhile, the Cheeto-in-chief, who could totally do something about all this, does nothing about all this.

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


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