Court Says FBI Doesn't Have To Hand Over Its Rules For Surveilling Domestic Journalists

from the petitioners-immediately-placed-under-surveillance dept

Thu, Mar 16th 2017 3:28am — Tim Cushing

A couple of years ago, the Freedom of the Press Foundation sued the DOJ over its refusal to release its secret rules governing spying on the nation's journalists. This was prompted by revelations the FBI had used National Security Letters to obtain information on AP and Fox News journalists. The DOJ then issued new rules on the do's and don'ts of surveilling journalists, but once again (a) redacted them into uselessness and (b) granted the FBI an NSL exception, undercutting the entire point of the recrafted rules.

The OIG report -- in which the Inspector General disputed the DOJ's extensive redactions -- still has yet to be released in a less-redacted form. Sadly, it now appears it will never be any less redacted than the unintelligible mess the DOJ handed over a few years ago. A federal judge has sided with the government, finding its investigative techniques and methods are too sensitive to be handed over to the public, much less journalists it may or may not have surveilled using NSLs. (h/t Trevor Timm, Mike Scarcella)

Underlying everything is the government's barely-contested assertion that these rules contain information of national security interest. It's a handy assertion because it means the DOJ doesn't even have to explain why the redactions it made are relevant to its national security claims. From the opinion [PDF]:

Recognizing the Court’s “limited institutional expertise on intelligence matters,” the Court accords substantial weight to Hardy’s representation that “any greater specificity in the descriptions and justifications . . . could reasonably be expected to jeopardize the national security of the United States.” Hardy Decl. ¶ 46. In the area of national security, “it is conceivable that the mere explanation of why information must be withheld can convey valuable information to a foreign intelligence agency.”

This same argument appears later in the decision when dispensing of the plaintiff's challenge to yet another FOIA exception deployed by the FBI:

[T]he Court finds Defendant has met its burden and properly withheld documents under Exemption 7(E) for all five categories of documents. Defendant described with particularity that the withheld documents all contained non-public information about the FBI’s investigative techniques and procedures. These pages not only identified NSLs as an investigative technique, but also described information such as the circumstances under which the techniques should be used, how to analyze the information gathered through these techniques, and the current focus of the FBI’s investigations. As in Hamdan, the Court concludes that the declarations, which state that further detail would “reveal[] the very information it seeks to protect,” are sufficient to satisfy Defendant’s burden.

The court's also uninterested in double-checking the DOJ's secrecy assertions. As always, the court has the option to review contested documents behind closed doors (and away from plaintiffs) to see if the government's claims of national security/investigative concerns are valid. The court here declined to exercise this privilege.

The Court finds that in camera review is unnecessary here as Defendant already provided sufficiently detailed factual information in support of its exemptions in the Hardy Declarations and Vaughn Index.

The FBI is still free to use NSLs to obtain information -- including call records -- about journalists. The DOJ may have reined in other options, but NSLs have always been the FBI's go-to form when it's stymied by the FISA court, magistrate judges, or internal guidelines. Nothing about that will change. As for what's actually changed at the DOJ as a result of this public outing of journalist surveillance, the public apparently can't be trusted with that information.

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Filed Under: doj, fbi, first amendment, freedom of the press, journalists, rules, surveillance, transparency
Companies: freedom of the press foundation

16 Comments

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Anonymous Coward, 16 Mar 2017 @ 3:55am

good ol' Police State' triumphs again! what the hell is the point of having courts that are supposed to act in fair ways, to ensure that both sides are treated equally if only the government is ever handed a 'win'? given the way courts act today, disregarding the public and their interests on all but the most unusual of occasions, is there really any point in having them? the government and security forces get whatever they want at just about every single hearing!!
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Anonymous Coward, 16 Mar 2017 @ 3:59am

National security interests? Isn't that code for we are breaking the law, but wont admit it, so there is nothing you an do about it.
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Anonymous Coward, 16 Mar 2017 @ 5:06am

Journalist = Terrorist
...if we don't like what you write.

Sounds like being under FBI surveillance is part of the job for journalists now.
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D.C. Pathogen (profile), 16 Mar 2017 @ 6:05am

Re: Journalist = Terrorist
Sounds like being under surveillance is part of every day life for americans now.
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Anonymous Coward, 16 Mar 2017 @ 6:35am

Re: Re: Journalist = Terrorist
well I don't see many people complaining.

Hell we only elect pro surveillance administrations, and call anyone against surveillance loonies.
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I.T. Guy, 16 Mar 2017 @ 8:57am

Re: Re: Re: Journalist = Terrorist
No sir, they get called conspiracy theorists. And while the "Conspiracy theorists" were screaming what would become of the USA "Patriot" Act and where it would go, others were laughing making tinfoil jokes saying that could never happen here.

The joke is on them. Too bad it's not exactly a funny one.
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freedomfan (profile), 16 Mar 2017 @ 8:59am

The court seems to be saying, essentially, it's okay to gather phone records and otherwise surveil citizens without a warrant (NSLs) by claiming "national security". When asked to detail how it choses to use this surveillance authority, it says, "We can tell you because... national security." Just as bad, the court decides that it won't review whether or not the national security claim is legitimate. Allowing the government to avoid scrutiny by using "national security" as a win button at every level of challenge is judicial folly.

Whether or not the government is using surveillance properly in any given case, the fact that it knows it can hide what it is doing by chanting "national security" whenever its actions are questioned means that abuses will go undetected. The fact that the government knows its abuses will go undetected guarantees that they will happen. Its pretty much a textbook example of why we value transparency in government: It's not that the government is necessarily always abusing its authority, it's that if it knows it can abuse its authority and not be caught, then it definitely will abuse its authority.
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Anonymous Coward, 16 Mar 2017 @ 9:24am

Re:
"national security" is the magic "we can do what ever we want" phrase.
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Bergman (profile), 16 Mar 2017 @ 10:38am

So basically...
One court has ruled that you can only sue the government fopr spying on you if you can prove that you were illegally spied upon.

And another court has now ruled that the rules/laws that determine if spying is illegal can be made secret and not disclosed.

So basically, between the two rulings, we no longer have the ability to sue.
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Bergman (profile), 16 Mar 2017 @ 10:41am

Re: Re:
Last I checked, there was no national security exemption to having to obey the law -- built into the constitution or anywhere else. It's been created by the courts despite the fact they supposedly lack the authority to create new laws.

Also, last I checked, there was no personal security exemption to having to obey the law. But if the government, which has only the powers granted to it by the constitution can ignore the law and do things its own charter forbids, then why must anyone obey any law whatsoever?

Because the government has more guns and more people willing to use them than you do. But if might makes right, getting the drop on a federal agent and killing him would be morally and ethically right, not wrong.
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stosh, 16 Mar 2017 @ 11:05am

Laying in a big supply of popcorn, waiting to see how different media outlets (other than Techdirt) react to this now that the administration has changed. Hypocrisy much??
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freedomfan (profile), 16 Mar 2017 @ 4:28pm

By the way, if the government is doing something that seems like it might be unconstitutional, then the default view of the courts should be that the government cannot do it, not the other way around. A court "deferring" to the government about what the government can do and what it can keep secret makes a joke of the whole idea of checks and balances between the branches.

The court seems to be saying it doesn't know enough to judge whether something the government is doing is legitimate. How does that translate into "the government wins"? If the court doesn't know enough to decide, then the government has not succeeded in making its case. If I am accused of some misbehavior and I tell the court, "Well, you don't know enough about my secret activities to judge them and I refuse to explain them to you because they are secret," what are my odds of winning that case?
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Anonymous Coward, 16 Mar 2017 @ 5:36pm

Government courts condoning government actions.
Wow. Imagine that.
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Wendy Cockcroft, 17 Mar 2017 @ 6:41am

Re: Re: Re:
Ah, but the secret interpretation of that law makes it legal for the government alone to avail themselves of "Might makes right." We peasants are obliged to return to the fields to labour for our feudal overlords.
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William, 17 Mar 2017 @ 3:49pm

Re: Re: Journalist = Terrorist
I would like to know the name(s) of the judge who made this ruling. Rulings like this one undermine our democracy and establish stringent limits to freedom
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Anonymous Coward, 20 Mar 2017 @ 8:46pm

The United States is a police state.
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