Wyden wrote to Sessions last October and asked two questions:

1. Has the Justice Department made any changes to its policies and procedures governing investigations of journalists since President Trump’s inauguration?
2. How many times in the past five years did the Justice Department use “subpoenas, search warrants, national security letters, or any other form of legal process authorized by a court” to target journalists in the United States or American journalists abroad?

Around the same time, the Knight First Amendment Institute at Columbia University and the Freedom of the Press Foundation filed a Freedom of Information Act request, also seeking information on the surveillance of journalists. We have since sued to enforce the request, and are in negotiations with the government over the processing and production of documents in response.

Meanwhile, Wyden has received a response that, while illuminating in certain respects, is frustratingly incomplete in others.

The omission of Ali Watkins’ story is troubling, and raises concerns that other instances of surveillance have been left out of the Justice Department’s response.  

The response letter — dated March 5, 2018, and published by Buzzfeed News earlier this week — discloses that, while the Justice Department continues to review its policies, “there have been no revisions to the existing policy and procedures.” This suggests that the department still follows the 2015 regulations adopted under former Attorney General Eric Holder, which, while non-binding, offer journalists important protections against subpoenas. However, it says nothing about the future of those protections once the DOJ completes its current review.

In response to Wyden’s request for statistical information, the department identifies two “instances over the past five years in which the Department has used law enforcement tools to obtain communications records, geolocation information, and the contents of communications.” The first dates to 2013, and appears to relate to a leak investigation in which the department subpoenaed more than two months of phone records for Associated Press reporters and editors without notifying the news organization. The second dates to 2014, and relates to the prosecution of Jeffrey Sterling, a former CIA officer, for leaking information to then-New York Times reporter James Risen.

Conspicuously missing, however, is any mention of the subpoena used to obtain the email and call records of Times journalist Ali Watkins, the first publicly known instance of a reporter having her records seized in connection with a leak investigation under the Trump administration. In breaking the story last month, the Times reported that Watkins was notified on February 13 that her records had been seized. The Justice Department’s letter to Wyden postdates that notification by almost three weeks, and states that it is responding to “requests for information from January 2012 to the present.” It in no way qualifies its answer by stating that the department has withheld information relating to ongoing investigations. The omission of Watkins’ story is troubling, and raises concerns that other instances of surveillance have been left out of the Justice Department’s response.

One piece of new and significant information in the letter is the Justice Department’s statement that “[t]he Federal Bureau of Investigation does not currently use national security letters to advance media leak investigations.” The use of national security letters, or NSLs, are of particular interest to press freedom advocates because they are an extraordinary search procedure, exempt from the department’s 2015 regulations, that gives the FBI the power to secretly compel the disclosure of customer records held by banks, telephone companies, internet providers, and others.

Even before this letter, the DOJ's plan to invoke a Glomar response – that the FBI can neither confirm nor deny the existence of the information we are seeking – was specious.  

Once again, though, the department perpetuates uncertainty: It does not say whether it has used NSLs to advance leak investigations in the past, or whether it may do so in the future. And it does not say whether it uses, or has used, NSLs to obtain journalists’ data outside the context of leak investigations.

The Justice Department’s disclosure does, however, bear on the negotiations in our own lawsuit for information about NSLs. The government’s lawyer indicated last month that our request for information about NSLs would be met with a so-called Glomar response: the FBI can neither confirm nor deny even the existence of the information we are seeking. Such Glomar responses — non-answers that transparency advocates believe have been widely abused — have too frequently enabled intelligence officials to keep important information from the public. 

Even before the department’s letter to Wyden, its planned Glomar response was specious. The FBI’s internal rules specifically contemplate issuing NSLs to obtain the records of journalists, or the records of third parties communicating with journalists, and the agency has previously released a redacted version of those rules. In light of that, it is difficult to see how the government could argue that national security harm would result simply from disclosing the number of times those rules had actually been invoked.

In any event, it will be very difficult for the FBI to make such a claim now that it has disclosed information about its use of NSLs in its response to Wyden. Plainly, that information is not sensitive, and the FBI should be willing to release it in the context of our FOIA suit — which will, we hope, begin to provide real answers for journalists who must safeguard confidential sources in order to effectively speak truth to power.

The following statement is attributable to Jameel Jaffer, executive director of the Knight First Amendment Institute at Columbia University:

“Government surveillance of a reporter’s communications would be concerning under any circumstances, but it is especially so here. It is unclear whether the government exhausted other options before seizing Watkins’ phone and email records. It’s also not apparent why it was necessary to collect years’ worth of sensitive information. Finally, there is a question whether Watkins was notified in a timely way of the surveillance. It is thus unclear whether the search complied even with the Justice Department’s own guidelines relating to surveillance of the media.”

About the Knight Institute

The Knight First Amendment Institute is a non-partisan, not-for-profit organization established by Columbia University and the John S. and James L. Knight Foundation to defend the freedoms of speech and press in the digital age through strategic litigation, research, and public education. Its aim is to promote a system of free expression that is open and inclusive, that broadens and elevates public discourse, and that fosters creativity, accountability, and effective self-government.

Last November, the Knight Institute and Freedom of the Press Foundation sued for information about the FBI’s domestic surveillance practices, and the extent to which those practices may infringe on the freedoms of speech and of the press. Tuesday’s indictment, part of a larger Justice Department push to investigate and prosecute leakers, underscores those concerns. The FBI agent charged is accused of leaking FBI documents cited in a January 2017 Intercept article titled “Secret Docs Reveal: President Trump Has Inherited an FBI With Vast Hidden Power.” He was reportedly the only Black field agent in the bureau’s Minnesota office, and, in a statement released yesterday, Albury’s attorneys said his actions “were driven by a conscientious commitment to long-term national security and addressing the well-documented systemic biases within the FBI.”

In response to reports of the charges, Knight Institute Executive Director Jameel Jaffer issued the following statement:

“It’s disturbing to see the Espionage Act being used once again against a public servant who appears to have been motivated by a desire to inform the public about wrongdoing. The Espionage Act is a blunt and draconian tool that doesn’t distinguish between disclosures to the media and disclosures to foreign intelligence services, or between disclosures in the public interest and disclosures that compromise national security. Its use in circumstances like these will chill whistleblowers, make investigative journalism more difficult, and deprive the public of information it needs to understand government policy.”

About the Knight Institute

The Knight First Amendment Institute is a non-partisan, not-for-profit organization established by Columbia University and the John S. and James L. Knight Foundation to defend the freedoms of speech and press in the digital age through strategic litigation, research, and public education. Its aim is to promote a system of free expression that is open and inclusive, that broadens and elevates public discourse, and that fosters creativity, accountability, and effective self-government.

“The apparent hostility toward the press from senior government officials combined with increasing government surveillance create a dangerous environment for reporters and whistleblowers,” said Knight Institute Staff Attorney Carrie DeCell. “The public has a right to know if the limits on surveillance of journalists are sufficient to ensure a free press.”

In October, the Knight Institute and Freedom of the Press Foundation filed Freedom of Information Act requests with the Justice Department, the National Security Agency, the CIA, and other federal agencies, seeking records concerning the surveillance of journalists and other investigative tactics that threaten the freedoms of speech, association, or the press. In response, those agencies have disclosed only two publicly available documents, prompting the lawsuit.

"The public has a right to know if the limits on surveillance of journalists are sufficient to ensure a free press."Carrie DeCell, Staff Attorney  

The organizations are particularly interested in uncovering any relevant revisions to the Justice Department’s “Media Guidelines,” which, notably, contain media subpoena policies that Attorney General Sessions indicated last August he wanted to revisit.

The Knight Institute and Freedom of the Press Foundation also sought any revisions to the FBI Domestic Investigations and Operations Guide (known informally as the “DIOG”) that concern the use of secret “national security letters.” Apparently not subject to the Media Guidelines, national security letters may be used to compel a third party (such as a cellphone provider) to disclose customer records (such as a journalist’s call log). In 2016, the news organization The Intercept published leaked portions of the DIOG indicating that FBI agents have been secretly authorized to obtain journalists’ phone records with the approval of only two internal officials. Emails released to the Freedom of Press Foundation indicated that these portions of the DIOG may since have been updated, although any updates remain secret.

“The fact that the Justice Department has completely exempted national security letters from the Media Guidelines and can target journalists with them in complete secrecy is an affront to press freedom,” said Trevor Timm, executive director of Freedom of the Press Foundation. “There’s absolutely no reason why these secret rules should not be public.”

The organizations intend to publish any records disclosed as a result of their lawsuit.

Download the complaint and the FOIA request.

About the Knight Institute

The Knight First Amendment Institute is a non-partisan, not-for-profit organization established by Columbia University and the John S. and James L. Knight Foundation to defend the freedoms of speech and press in the digital age through strategic litigation, research, and public education.

About the Freedom of the Press Foundation

The Freedom of the Press Foundation is a non-profit organization that protects and defends adversarial journalism in the 21st century. FPF uses digital security, crowdfunding, and internet advocacy to support journalists and whistleblowers worldwide.

Despite these rules, the Trump DOJ nevertheless obtained court orders for communications records of eight journalists, delaying notice until after the fact. The past month brought a series of revelations that, under the Trump administration, the DOJ had secretly seized communications records of three Washington Post reporters, a CNN correspondent, and four New York Times reporters to try to identify their sources. 

President Biden called this surveillance “simply wrong.” Following his comments, however, The New York Times revealed that Biden’s DOJ had continued to seek its reporters’ email records long after the change in administration. (The White House said it did not learn of this until the day The Times article was published.) After fresh outrage over The Times article, the DOJ announced on Saturday that it would no longer “seek compulsory legal process in leak investigations to obtain source information from members of the news media doing their jobs.” 

This is a significant improvement to the DOJ’s previous approach. Still, there are questions to be answered. When will the DOJ officially update its news-media guidelines to reflect this change? And as The Times noted, the DOJ’s statement appears to leave some “wiggle room” surrounding the circumstances in which the policy applies, limiting it to when journalists are “doing their jobs.” What exactly does this mean?

A final critical question remains. The DOJ’s new policy—just like the previous guidelines—only applies to “members of the news media.” But who counts as a member of the news media? A document recently obtained through a Freedom of Information Act lawsuit filed by the Knight First Amendment Institute at Columbia University and Freedom of the Press Foundation, our respective organizations, shows that the DOJ’s internal criteria give the agency substantial latitude when making that determination, raising concerns that some newsgatherers will be denied protection.  

While it seems clear that the DOJ reasonably considered The Washington Post, CNN, and The New York Times reporters to be “members of the news media,” the news media guidelines do not actually define that term—creating uncertainty about whether the Biden administration’s new moratorium is limited to “traditional” news media or whether it also applies to those engaged in less traditional newsgathering, like bloggers, newsletter authors, or other independent journalists who don’t fit neatly within the traditional mainstream news-style rubric. The FBI’s Domestic Investigations and Operations Guide defines “news media” as “an entity organized and operated for the purpose of gathering, reporting or publishing news,” and expressly notes that bloggers don’t qualify. But this working definition is specific to the FBI’s internal policies, and it was unclear whether the rest of the DOJ was also using this definition when applying the news media guidelines. 

We submitted a FOIA request in October 2017 seeking information about how the guidelines operate. In response to this request, the government released a trove of information we’ve previously described, but it also redacted certain critical information.

In particular, the DOJ redacted part of its “News Media Policy Consultation” form, which lays out the “relevant facts” that the agency considers when determining whether someone qualifies as a “member of the news media.” It argued that revealing that information would harm the ability of DOJ attorneys to conduct investigations and prosecutions. The district court rejected that argument, ordering the DOJ to release the form. The unredacted form contains a list of 12 factors.

These factors raise at least two serious concerns. First, these malleable criteria give the agency significant discretion to determine who qualifies and who doesn’t, creating the risk that the protection of the new policy will be granted only in unduly narrow circumstances. The DOJ considers, for example, whether the subject of the planned surveillance “primarily” reports facts (No. 6), whether the person “regularly” engages in newsgathering (No. 2), and “the frequency with which the individual or entity publishes” (No. 11). 

This phrasing suggests that the agency may exclude from protection individuals or entities that do engage in some amount of investigation and newsgathering, but perhaps just not with the regularity the government deems sufficient. 

The criteria also hint that the DOJ may be drawing unjustifiable lines between “traditional” media and newer forms of independent journalism like blogs and newsletters. The criteria ask if the person is employed by a media organization (No. 10), has press credentials (No. 9), and whether the person’s focus is “bring[ing] to light new information,” rather than analyzing information “that already ha[s] been reported” (No. 1). The lack of clarity around how these factors are weighed is unsettling, especially considering journalists like Matt Yglesias (formerly of Vox), Casey Newton (formerly of The Verge), and Charlie Warzel (formerly of The New York Times), who eschew more traditional media outlets for the editorial freedom of Substack. 

Did they inadvertently sacrifice the protections of the DOJ’s news media guidelines—and the Biden administration’s new prohibition—by shifting their mode of distribution? Or would their original content (No. 3), independence (No. 4), and frequency of publication (No. 11) be enough in the eyes of the agency? 

Without any indication of how the DOJ weighs and interprets each of these factors, it is difficult to predict whether any given individual will qualify as a member of the news media and thus benefit from the protections of the Biden administration’s new moratorium. To be clear, a range of the criteria need not necessarily be a bad thing. The DOJ could use its discretion to broaden, rather than narrow, the scope of the protections. But based on how the document we obtained is worded, and without more information from the DOJ, there is certainly reason for concern.

The revelations that the DOJ secretly obtained the records of The Washington Post, CNN, and The New York Times reporters are a stark reminder that the DOJ’s protections for the news media can be changed or reinterpreted with any administration. That’s why Congress should codify the DOJ’s newly stated policy into law. But for some involved in investigation and newsgathering, an even more pressing issue is whether these protections apply to them at all.

In 2013, the Justice Department launched a brazen attack on press freedom, issuing sweeping subpoenas for the phone records of the Associated Press and several of its reporters and editors as part of a leak investigation. At the time, the subpoenas were widely seen as a massive intrusion into newsgathering operations. Last month, we learned that they told only part of the story.

A new report obtained by the Knight First Amendment Institute at Columbia University and the Freedom of the Press Foundation (where the authors work) under the Freedom of Information Act shows that the DOJ’s actions against the AP were broader than previously known, and that the DOJ considered subpoenaing the phone records of other news organizations, including The Washington Post, The New York Times, and ABC News. Moreover, they reveal how narrowly the DOJ interprets the Media Guidelines, the agency’s internal rules for obtaining reporters’ data. 

In May 2012, the AP published several articles about a successful CIA operation that thwarted a Yemen-based bomb plot. These articles contained classified information and their publication prompted a leak investigation. In February 2013, then Deputy Attorney General James Cole approved a request by DOJ attorneys to subpoena the telephone records of the AP as part of this investigation.

Although the purpose of the subpoenas was to identify the AP’s sources, the news organization was not given advance notice of them. Instead, more than a month later, it was informed that, at some unidentified earlier point in time, the DOJ had obtained records for 21 different phone lines associated with the organization, including AP general office numbers in Washington, New York, and Hartford, Connecticut, and the main number for AP reporters covering Congress—all over a two-month period.

In its response, the AP argued that the subpoenas violated the Media Guidelines—which provide, among other things, that a subpoena for a reporter’s telephone records must be drawn as narrowly as possible—and interfered with the news organization’s First Amendment rights. The DOJ defended its position. Recently obtained documents, however, show for the first time that ethics lawyers in the DOJ’s Office of Professional Responsibility took the AP’s allegations seriously enough to investigate them.

The report, which was submitted to then-Attorney General Eric Holder in 2013, reveals that the leak probe was broader than previously understood. It reveals, for example, that, while the Justice Department obtained telephone toll records for 21 telephone numbers, the agency in fact issued “30 subpoenas to obtain telephone toll records for 30 unique telephone numbers.” The report reveals that those 30 subpoenas were intended to target seven reporters and editors, and covered a period of six weeks spanning April 1, 2012 to May 10, 2012.

The report also shows that, at least at one stage of their investigation, Justice Department attorneys considered subpoenaing the records of The Washington Post, The New York Times, and ABC News. What’s more, the report strongly suggests that the attorneys went so far as to obtain “telephone numbers and other contact information” for reporters and editors at those organizations who had worked on articles about the Yemen bomb plot. The report records, however, that the attorneys ultimately decided against issuing additional subpoenas.

The report is also important for what it tells us about the Justice Department’s Media Guidelines. Specifically, the report shows how weak the guidelines are, and how, in practice, the rules may offer little protection to journalists worried about being caught up in a criminal investigation. Although the guidelines have been revised since the AP subpoenas controversy, several of its standards remain intact. Among these is the requirement that proposed subpoenas be “narrowly drawn.”

While substantial portions of the Office of Professional Responsibility’s analysis are redacted, its finding that the AP subpoenas were “as narrowly drawn as possible” appears to have hinged on the perceived seriousness of the leak; the decision not to subpoena the telephone records for employees at the Post, the Times, and ABC News; the inability of investigators to determine to which AP reporter or editor the leaker had provided classified information; and “perhaps most importantly” the fact “the subpoenas requested the records for—and not the contents of—telephonic communications.”

The report ultimately concludes that DOJ attorneys involved in the decision to subpoena the AP’s records “did not engage in misconduct or exercise poor judgment.”

Disturbingly, the report does not come close to explaining why the subpoenas targeted the trunk lines of major AP offices—lines which could potentially reveal communications with confidential sources across all of the AP’s newsgathering activities. The report concludes that “although the [Justice] Department subpoenaed telephone records for several telephone numbers that subsequently were discovered not in fact to relate to an [AP] reporter or editors,” it was sufficient that “at the time when the subpoenas were sought, investigators had a factual basis for believing that those telephone numbers did relate to [AP] personnel.”

But merely requiring some evidence that a telephone number “relates to” a journalist is an extraordinarily low bar. In almost every case, the general phone numbers of a news organization will “relate to” any one of its reporters or editors.

Moreover, the notion that records for phone communications are not nearly as sensitive as the contents of those communications is dangerously misguided. As the Supreme Court recognized just last year, in Carpenter v. US, non-content phone data can provide an intimate window into a person’s life. For journalists, it can compromise the integrity of the newsgathering process by exposing the stories they are working on and the identity of countless sources.

Last year’s revelation that the Justice Department seized years of Times reporter Ali Watkins’s phone and email records makes clear that the DOJ continues to give short shrift to key limitations on its subpoena power. The subpoenas—which were used to obtain years of customer records and subscriber information for two of Watkins’s email accounts, and a phone number—swept extremely broadly, and many legal experts thought the Justice Department violated the Media Guidelines in issuing them. Yet the DOJ insisted that the seizure fully complied with the rules.

The Justice Department’s narrow interpretation of the Media Guidelines throws into sharp relief the weakness of some of the only legal protections journalists have. The Trump Administration’s recent threats to water down even these protections should sound alarm bells for anyone concerned about press freedom.

Government surveillance of journalists poses a serious threat to the freedom of our press. For that reason, in January 2015, the Department of Justice revised a set of procedures, known as the “Media Guidelines,” to limit the circumstances in which it will use certain surveillance authorities to monitor journalists.

The Media Guidelines are far from perfect, however, in their protection of journalists. One persistent criticism is that they do not apply to the use of National Security Letters (NSLs) or surveillance conducted under FISA. That’s especially troubling because these tools permit surreptitious surveillance with little accountability to the public for their use. FISA, for example, allows intelligence agencies to collect the email communications of a person deemed to be an agent of a foreign power, and NSLs permit the FBI to issue warrantless requests to third parties for non-content records.

For years, press advocates suspected that the government was relying on the Foreign Intelligence Surveillance Act to monitor the communications of journalists and news organizations. New documents appear to confirm that suspicion.  

The extent to which the government uses—and has used—NSLs and FISA court orders against journalists is unclear. We know, however, that the FBI has secret rules for obtaining journalists’ information using NSLs. At least one journalist, three-time Pulitzer Prize–winning reporter Barton Gellman, has been told that his phone records were obtained using an NSL. And the government itself, in a series of heavily redacted Inspector General reports, has admitted to using exigent letters (sometimes referred to as “informal NSLs”) against unnamed New York Times and Washington Post reporters during the George W. Bush administration.

New documents obtained in Freedom of Information Act litigation brought by the Knight Institute and the Freedom of the Press Foundation suggest that the government also uses FISA court orders to monitor journalists.

Higher-Level Review of FISA Applications

The documents comprise two memos, both from former Attorney General Eric Holder to the DOJ’s National Security Division (NSD). The first, from January 2015, issues secret guidance for targeting journalists under FISA. The guidance states that the Attorney General “determined that review of FISA applications targeting known media entities or known members of the media should occur at even higher levels than otherwise permitted by FISA and existing Attorney General orders.” (For a helpful explainer of how FISA applications are normally reviewed, see this Just Security post from Asha Rangappa.)

Unfortunately, the January 2015 memo is otherwise redacted, but a second memo, from March 2015, sheds further light. It clarifies that the Attorney General’s determination requiring higher-level review covers all FISA applications under Title I (electronic surveillance), Title III (physical search), Title IV (pen registers and trap and trace devices), Title V (business records—which do not require formal AG approval under the statute), Section 703 (targeting certain U.S. persons located outside the U.S.), and Section 704 (also targeting certain U.S. person located outside the U.S.). (The determination does not, it appears, extend to Section 702, which enables programmatic surveillance of Americans’ international communications—a significant omission.) The memo also directs NSD to implement a series of procedures designed to give effect to the Attorney General’s new policy.

Specifically, the memo mandates that FISA applications for surveillance targeting known news organizations or journalists be presented to the Attorney General or Deputy Attorney General for approval prior to submission to the Foreign Intelligence Surveillance Court, unless, upon direction of the Attorney General or Deputy Attorney General, they are referred to the Assistant Attorney General for NSD for disposition. The memo further provides that, once approved, subsequent applications to monitor the same target should be presented to the Assistant Attorney General for NSD unless circumstances related to the target’s status as a journalist or media organization have changed.

Key Questions

The documents raise important questions about the government’s surveillance of news organizations and journalists.

First, how many times has the government used FISA to target news organizations and journalists? Press advocates have long expressed concern that the uncertainty surrounding the use of FISA to monitor journalists’ conversations chills their sources from speaking. Although we now have good evidence that the government does, in fact, use FISA to target journalists, we don’t know how often it does so, because FISA applications and court orders are kept confidential.

Second, given the government’s apparent concession that the DOJ’s procedures for processing FISA applications are not sensitive, why does it continue to withhold the FBI’s procedures for processing NSLs directed to the media (contained in Appendix G.12 of the agency’s Domestic Investigations and Operations Guide)? Officially, these procedures have been released only in heavily redacted form—including, most recently, to us, in response to our FOIA request—with critical details obscured. Unofficially, The Intercept has released a leaked version of the rules dating back to 2013. But the rules have since been updated—most recently in March 2016—and it is unclear how much they have changed.

Third, why is it that the FBI’s rules speak to the incidental collection of journalists’ communications, but the FISA procedures don’t? The FBI’s rules appear to cover not only NSLs that seek the records of journalists but also NSLs seeking the records of third parties that are likely to reveal communications with journalists—at least where a purpose of the surveillance is to identify journalists’ sources. Meanwhile, the FISA procedures only cover applications that directly target journalists. This gap is significant and potentially creates an end-run around the requirement for higher-level review.

Fourth, and perhaps most importantly, why are NSLs and FISA surveillance exempt from the Media Guidelines? The use of national security surveillance tools to seek information from or about journalists should be subject to at least as much internal oversight as subpoenas and warrants, which are subject to those guidelines. Yet the procedures that govern NSLs and FISA surveillance allow the government to sidestep some of the Media Guidelines’ most important protections—for example, the requirement that (1) the information sought be “essential to a successful investigation, prosecution, or litigation”; (2) the requester make “reasonable alternative attempts . . . to obtain the information from alternative sources”; and (3) the government notify and negotiate with the affected journalist except in certain narrow circumstances.

These questions urgently need answers. National security surveillance authorities confer extraordinary powers. The government’s failure to share more information about them damages journalists’ ability to protect their sources, and jeopardizes the newsgathering process.