Freedom of the Press Foundation this week filed a Freedom of Information Act (FOIA) lawsuit against the Justice Department over their unpublished rules for using National Security Letters and so-called informal “exigent letters” to conduct surveillance of journalists.
Last year, after a backlash stemming from the surveillance of Associated Press and Fox News journalists, the Justice Department released new guidelines that supposedly barred the government from issuing subpoenas to journalists unless very high standards were met. The rules were generally a victory for the press. However, buried in the news reports about the change was the fact that the Justice Department reportedly thinks the media guidelines do not apply when issuing National Security Letters (NSLs). As the New York Times wrote at the time:
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 that “extensive oversight regime”? Apparently, the Justice Department considers that secret. In a 2014 Inspector General report on the use of NSLs and exigent letters, the media guidelines are referenced (28 CFR § 50.10), but the details are redacted.
Reading between the redactions, it seems that Attorney General approval may be required in some circumstances but not in others. But the FBI and DOJ have kept those circumstances secret, even though we know the FBI has abused its NSL authority and other methods to collect journalists’ confidential information in the past in an attempt to root out confidential sources.
For those unfamiliar, National Security Letters are subpoena-like legal orders that the FBI can unilaterally issue to service providers without any court sign off at all. Worse, they almost always come with a gag order, preventing service providers from ever disclosing that they received one. (In 2013, a federal court ruled NSLs were an unconstitutional violation of the First Amendment, but the decision is on appeal. They are still in use).
Exigent letters are informal information demands that the FBI has used in the past to obtain information in investigations. The DOJ Inspector General determined that these exigent letters were not authorized by any law, flouted internal FBI policy, and violated Attorney General guidelines. The Inspector General had also found that the FBI used exigent letters to get call records of Washington Post and New York Times reporters.
We filed a Freedom of Information Act request shortly after the above-referenced Inspector General report was released in late 2014. And after no meaningful response from the Justice Department since we filed our FOIA request five months ago, we are suing them in federal court.
We’ll keep you updated on how the case progresses, but in the mean time, you can read the full complaint below.