Freedom of the Press Foundation has been suing the Justice Department (DOJ) under the Freedom of Information Act for these secret rules for the past year. Just two weeks ago, a coalition of three dozen news organizations, including the New York Times and Associated Press, demanded the DOJ release them. The DOJ, so far, has refused.
The leaked rules The Intercept has published give us a revealing and startling look at how the FBI can conduct surveillance of journalists in complete secrecy and with no court oversight.
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 complete 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.
The leaked rules are from the classified annex of the FBI’s Domestic Investigations and Operations Guide. The guide itself is dated 2011, though the particular section was active as of at least 2013. A redacted version of this guide is available on the FBI’s website, but their version censors virtually all the rules themselves. Documents previously released in our lawsuit indicate these rules may have been updated in the last two years. The leaked rules from 2013 state, in part:
If the NSL is seeking telephone toll records of an individual who is a member of the news media or a news organization and a purpose of the NSL is to identify confidential news media sources, the General Counsel and EAD-NSB, after consultation with the Assistant Attorney General for the National Security Division (AAG-NSD), must approve the NSL.
Given that virtually all leak investigations that ensnare journalists relate to stories published about national security, it makes a mockery of the Media Guidelines that the DOJ has repeatedly said restricts its agents and prosecutors.
The other major question here is: why are these rules secret in the first place? 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.
Congress is now engaged in a debate to dramatically expand the FBI's use of National Security Letters. This is yet another reason why they should not only reject that dangerous proposal, but revoke the FBI's NSL powers altogether.
You can read the full classified rules leaked to the Intercept here.
This article also appears at the Freedom of the Press Foundation blog.