Lawsuit Seeks Government Guidelines on Surveillance of Journalists as Leak Investigations Surge

November 29, 2017

The Knight First Amendment Institute at Columbia University and Freedom of the Press Foundation filed a lawsuit today after the government failed to disclose critical portions of its internal guidelines relating to the surveillance of journalists. The lawsuit follows Attorney General Jeff Sessions’ recent statement that the Justice Department currently has 27 open leak investigations, nine times as many investigations as last year.

“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.