Leak Reveals Secret FBI Guidelines That Basically Give Them Free Rein To Spy On Journalists And Sources

from the not-cool,-doj dept

Fri, Jul 1st 2016 12:47pm — Mike Masnick

Eleven months ago, we wrote about a lawsuit filed by the Freedom of the Press Foundation seeking to get a copy of the DOJ's infamous new rules for spying on journalists. The new rules came about after it had come out that the DOJ had spied on Associated Press reporters as well as lied to a court to claim that Fox News reporter James Rosen was a co-conspirator in a leak investigation. To date, the DOJ has steadfastly refused to reveal the rules.

Thankfully, someone has now leaked the rules, or at least the 2013 version of some of the rules, which show that, contrary to what then Attorney General Eric Holder had suggested, it's still ridiculously easy for the FBI to spy on reporters and their sources in trying to hunt down a leak. In fact, it appears that these rules, around the use of NSLs are actually separate from the rules that Holder was talking about -- meaning that there's an entirely separate path for the DOJ to spy on journalists. The rules show that the FBI can just issue a National Security Letter (NSL), the mechanism that the FBI has been known to regularly abuse without consequence and which it's trying to expand. The "process" by which the media is supposedly protected under these new rules is that if someone in the DOJ is seeking an NSL to get phone records of someone in the media, they need to get some permission from someone else in the DOJ first:

This is the fox watching the henhouse. These are not restrictions, these are just the DOJ getting to ask itself if it really wants to spy on these journalists, and the DOJ telling itself "sure, go ahead." There's a further exception that if someone is a member of the media, but the FBI "suspects" they're an intelligence officer or affiliated with a foreign intelligence service, "no additional approval requirements" are needed. So, as with the Rosen case, the FBI can just declare him a "co-conspirator" and voila, no approval necessary.

As the Freedom of the Press Foundation explains in response to this leak, this completely undermines the claims by the DOJ that there were strict controls on spying on journalists:

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 total 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.

There's a separate important question here too: why were these rules kept secret? There is no national security reason to keep this secret. It does not reveal anything that helps anyone avoid surveillance. As Freedom of the Press Foundation notes, it appears the only reason to keep this secret is to avoid the embarrassment.

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.

The Foundation is also planning to continue its lawsuit for two reasons. First, as mentioned in the quote above, it wants the DOJ to officially release the rules, and, more importantly, it believes that the rules may have been updated since these 2013 rules were published.

The whole thing, once again, shows just how ridiculous this administration has been concerning protecting the rights of journalists to talk to confidential sources. "The most transparent administration in history" once again seems to be the exact opposite. Undermining the freedom of the press and spying on reporters and their sources is shameful. It's the activity of tyrants and insecure dictators, not democratically elected governments.

DIOG-Appendix-Media-NSLs (PDF)DIOG-Appendix-Media-NSLs (Text)

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Filed Under: doj, fbi, journalists, national security letters, nsls, oversight, surveillance
Companies: freedom of the press foundation

16 Comments

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Anonymous Coward, 1 Jul 2016 @ 2:35pm

Unable to Challenge
If the rules aren't officially released, then you can't challenge them in court and they can play by any rules that they want.
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Anonymous Coward, 1 Jul 2016 @ 2:48pm

Happy Independence Day!
See, in totalitarian countries there are no laws and the government can do whatever it wants - spy on citizens, imprison them forever, torture them, execute them.

In this, the Best of All Possible Oligarchies, we are a nation of laws - laws that explicitly say the government can spy on citizens, imprison them forever, torture them, and execute them.

So this Fourth of July, remember that in America you are free - free to do as you're told and shut the fuck up.
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Mark Wing, 1 Jul 2016 @ 3:17pm

J Edgar Hoover set the tone for this behavior back in the 1930s. He investigated whoever the fuck he wanted to investigate and kept secret files on people he didn't like in order to blackmail them. The FBI did whatever it (he) wanted with impunity.

So I'm not seeing that much has changed with the FBI since 1935, other than maybe more scrutiny by the public. Comey doesn't seem any less nutty than Hoover was. Their internal policies don't seem any less draconian.
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JonC (profile), 1 Jul 2016 @ 6:02pm

Since they want to revise the NSL rules, maybe they should be revised to forbid their use for this purpose. Anyone want to bet that Congress will act in support of the people they're supposed to represent? I'll offer very good odds...
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Uh Huh, 1 Jul 2016 @ 6:28pm

The Fibbers
"Legalized" criminal, treasonous behavior. Happy July 4.
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That One Guy (profile), 1 Jul 2016 @ 7:25pm

"To the best of our knowledge, these are the rules..."
I think it would be perfectly fair to assume that the rules have not been changed since 2013, and state that as far as they know these rules are the ones the agency is using. If the DOJ doesn't like it then they are welcome to release the 'updated' version, but until then this should be assumed to be the current set.
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Rocky, 1 Jul 2016 @ 7:44pm

WTF?
It can not be repeated enough:

USA, what the f*ck are you doing?

You have federal institutions wiping their collective butts with the constitution, a security collective spying on EVERYONE, a police force robbing citizens willy nilly, a presidential candidate that can't string two coherent sentences together, a de-facto two party system that's so toxic that they rather take cheap shots at each other than get the country working; not to mention all the frigging bribing of politicians/senators going on (NO - it's not f*cking campaign funds or whatever - it's BRIBES), news channels making up news or just plain lie to fit their political agenda every other story.

Really? WTF?!

If you could put electric generators on the founding fathers you could probably power the whole country since I guess they are turning at supersonic speed right about now.
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Padpaw (profile), 1 Jul 2016 @ 8:51pm

Who is really running the country?
Not a surprise considering they get rewarded the more laws they break and constitutional rights they ignore.

Whoever is in charge really wants that police state dictatorship so badly they are providing incentives to their lackeys to abuse the citizenry as much as they can.
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Padpaw (profile), 1 Jul 2016 @ 8:54pm

Re: WTF?
You forget the founding fathers were terrorists according to the US government. Least they have been labeled that posthumously for the last 10 15 years.
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David, 2 Jul 2016 @ 2:50am

Oh, there is a reason
There's a separate important question here too: why were these rules kept secret? There is no national security reason to keep this secret.

Of course there is a national security reason to keep those things secret. Riots.
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Anonymous Coward, 2 Jul 2016 @ 11:02am

hey, yeah, c'mon. fbi has known for years that you can't use those magnum condoms you've been buying. they might as well know everything else, too.
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GEMont (profile), 2 Jul 2016 @ 12:07pm

(S)electing the (P)resident
" ...not democratically elected governments. "

Ah! Now there be the fly in the ointment ye see.

Since the whole voting system has been rigged for well over 3 decades, the truth of the matter is:

There is no "democratically elected" government in the USA, Canada, Great Britain, New Zealand, or Australia.

There are however, very real "corporate selected" governments in each of the Five Eyes Nations and it is absolutely necessary for these gangs of corporate minions to spy on the populations they are milking, all the time, to try and prevent the extraordinairily lucrative ruse from being exposed.

For the corporations, a non-fixed election process is a nightmare, as they have no way to control who might be elected or how the newly elected might treat the fascists that run the rest of the government operation.

A real election could literally ruin the whole game in a single moment, and expose the men and women behind the scenes that manufacture the crisis that keeps the populations looking over their shoulder and locking their doors at night.

In case you were asleep in history class, a corporate selected government is normally referred to as a Fascist Government.

Its Governemtn For Profit, and You, The People, are the Feedstock.

---
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Anonymous Coward, 3 Jul 2016 @ 1:36am

Re: Happy Independence Day!
note: "torture" usually includes rape and vaginal and rectal search in many civilized countries.. apparently USA's DHS does not consider it as such.

https://www.techdirt.com/articles/20160618/12275834743/customs-agents-local-doctor-subject-18-y ear-old-to-vaginal-rectal-probing-search-nonexistent-drugs.shtml
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Wendy Cockcroft, 6 Jul 2016 @ 5:52am

Re: WTF?
USA, what the f*ck are you doing?

Fascism. http://www.rense.com/general37/char.htm

I understand why so many people attribute the attitudes and behaviours we've seen to hard left-wing-ery, but this is actually a right wing thing, hence the reliance on dog whistle politics to maintain the status quo.

The only way to break it is not to blame people on either side of the aisle, it's to find allies on both sides and challenge this crap at the ballot box. You'll have to campaign hard on behalf of the candidates you want to get in; the first-past-the-post system and gerrymandering you have (we have them too) require that you find a few hundred more supporters for your chosen candidate than the last candidate got. It can be done if enough people work together.

If a self-proclaimed socialist can blow past Red Scare politics to take office in the Seattle city council, anything is possible.
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Anonymous Coward, 7 Jul 2016 @ 4:25am

Too bad they don't hold Clinton to same standard as leakers
I guess if you are leading candidate of the Dem party, you get special treatment. She quite probably leaked state secrets to foreign governments and gets an oh well response from the FBI. Let someone leak a legally questionable policy to the press and Obama will pull out all the stops to get that person. The current administration, and most likely the next one, is the most morally corrupt we have ever had.
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Anonymous Coward, 7 Jul 2016 @ 4:30am

Re: Re: WTF?
but this is actually a right wing thing,

That cracks me up right there! What, is it so far left that it circled the globe and came out on the right? If you haven't noticed, the left is in control, the left are perpetrating these things.

If it were up to the left, we would be blowing past socialism and going right to communism. In case you didn't notice, communism has left 10's of millions of dead bodies in its wake in the last 100 years.
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