Targeting Journalists Under FISA: New Documents Reveal DOJ’s Secret Rules

By
Ramya Krishnan
September 17, 2018

For years, press advocates suspected that the government was relying on the Foreign Intelligence Surveillance Act (FISA) to monitor the communications of journalists and news organizations. Now, as Cora Currier reports for The Intercept, documents obtained by the Knight First Amendment Institute at Columbia University and the Freedom of the Press Foundation appear to confirm that suspicion.

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.