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

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

Fri, Sep 5th 2014 3:39am — Trevor Timm, FPF

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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Filed Under: classified, doj, fbi, journalists, national security letters, nsls

23 Comments

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Ninja (profile), 5 Sep 2014 @ 4:12am

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.
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Anonymous Coward, 5 Sep 2014 @ 4:16am

Re:
Can you blow that whistle baby whistle baby...
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Anonymous Coward, 5 Sep 2014 @ 4:28am

Re:
Whistleblowers are great and all, but we need actual punishment for violating the everything the government is doing.
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Anonymous Coward, 5 Sep 2014 @ 4:31am

Re: Re:
Lying to congress? It's okay.
Spying on citizens? It's okay.
Torturing PoWs? It's okay.
Homicide by Police? It's okay.
Constitutional violations? It's okay.
And many more infractions that have been gotten away with in just the last 10 years.
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Chris-Mouse (profile), 5 Sep 2014 @ 4:38am

The FBI is obviously worried about terrorists.
They're terrified that if the public finds out what the FBI is up to, they will take drastic steps in an attempt ti influence political decisions.
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Anonymous Coward, 5 Sep 2014 @ 4:51am

Re: Re: Re:
Except that it is not ok for most people, not that most would want to do those things.

For most of us, all the above would result in jail or worse.
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Anonymous Coward, 5 Sep 2014 @ 5:39am

And of course the Courts will now say "you have no standing" to find out if they are spying on you. To get standing, first find out that they are secretly spying on you. Duh - circular logic FTW.
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Anonymous Coward, 5 Sep 2014 @ 5:39am

Re: Re:
Agreed, with no punishment they keep racking up energizer bunny points.
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Anonymous Coward, 5 Sep 2014 @ 5:45am

the American government does what it wants and cares not for what laws it breaks doing so. The constitution be damned were in control and the people can go to hell.
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Anonymous Coward, 5 Sep 2014 @ 5:47am

Re: Re: Re:
Makes this Canadian wonder why your country went to war with the British, or is it different when it is homegrown tyrants
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Anonymous Coward, 5 Sep 2014 @ 5:54am

Feeling sorry for the journalists?
They have long since begged for this by ever being friendly to any political party.

Yep... no tears here! It's time they started reaping what they have sown!

Whoops... sorry I meant ALL OF US!!!
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Anonymous Coward, 5 Sep 2014 @ 5:59am

Re: Re: Re: Re:
Nope Americans are just to worried about losing their creature comforts and too lazy to protest , sitting in compliance is so much easier to do , just like the German Citizens did during WWII .
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That One Guy (profile), 5 Sep 2014 @ 6:20am

Re: Feeling sorry for the journalists?
Problem with that line of thinking, the ones who are always kissing up to the administration aren't the ones who are going to be spied on, it's the ones that 'refuse to toe the line' that have to worry about this sort of thing.
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Anonymous Coward, 5 Sep 2014 @ 6:46am

Re: Re: Re: Re: Re:
But there's no America to come and save us this time.
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Anonymous Coward, 5 Sep 2014 @ 6:46am

Re: Re: Re: Re: 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.
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Anonymous Coward, 5 Sep 2014 @ 6:47am

When journalists expose the truth
The exception is most likely any time a journalist obtains is is willing to print proof of terrorism by our government. When you look at the definition you realize the entire thing is a lie.
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Anonymous Coward, 5 Sep 2014 @ 7:24am

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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Anonymous Coward, 5 Sep 2014 @ 7:32am

Re: When journalists expose the truth
Not only the exception but the defining point during which you can now count on your government being THE ENEMY of the State!

The moment their secrets are too important for public consumption that's when "The People" need to act.
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Just Another Anonymous Troll, 5 Sep 2014 @ 7:52am

Re: Re: Re:
But god forbid you tell anyone how evil your government really is, or you can expect a long jail term, mister Snowden!
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Ninja (profile), 5 Sep 2014 @ 7:53am

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.
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art guerrilla (profile), 5 Sep 2014 @ 10:03am

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 (tm) 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%...
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Anonymous Coward, 5 Sep 2014 @ 12:42pm

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.
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Anonymous Coward, 5 Sep 2014 @ 2:37pm

All Freedom of information and its equivalences around the globe mean at very best you may be lucky enough to obtain documents covered in black marker pen, fanfuckingtasic.
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