In July 2015, Freedom of the Press Foundation sued the Justice Department (DOJ) over the agency’s secret rules governing how the FBI can target members of the media with due process-free National Security Letters, and we have just received documents back in the ongoing lawsuit.
These secret rules matter because the DOJ recently released an updated version of their “media guidelines” after widespread public criticism stemming from the agency's surveillance of Associated Press and Fox News journalists in 2013. The media guidelines set a very high bar for when the DOJ and FBI could conduct surveillance on a journalist, and were portrayed at the time as a huge step forward for the rights of reporters.
The only problem is that—buried in the fine print and ignored by almost everyone at the time—the new guidelines do not apply to national security surveillance tools. The DOJ allows the FBI to completely sidestep its own media guidelines and issue National Security Letters (possibly as well as FISA court orders) instead of subpoenas or warrants—entirely in secret. Perhaps worse, they consider the rules for when they can do this to be classified.
Given that virtually every federal leak investigation involves national security, this could potentially allow investigators to circumvent the media guidelines whenever they wish.
After we sued, a lawyer at the Reporters Committee for Freedom of the Press found a redacted reference to these secret rules buried in an annex of the 2011 FBI Domestic Investigations and Operations Guide (DIOG), which as far as we can tell is the last version of that document the FBI has made publicly available. You can see here that if the FBI wants to issue an NSL targeting a reporter in a leak case, they follow another set of rules rather than the the DOJ media guidelines, which do not mention NSLs at all:
We received two batches of documents through our lawsuit in the past two weeks and are publishing them here for the first time today. You can read all of the documents below, some of which contain interesting information and redactions about NSLs in general. And we’ve pulled out the relevant references to the media and have analyzed them here.
First, the FBI documents state that the DOJ’s media guidelines only apply to “law enforcement tools” like subpoenas and warrants, “not national security tools” like secret NSLs and FISA court orders. This is somewhat surprising given that the guidelines explicitly mention that they take into account “several vital interests” like “protecting national security,” which one would think might implicate national security tools.
In an email dated January 8, 2015, the DOJ references a classified annex to the DIOG that contains rules for using NSLs to seek information about the news media (we did not receive the classified annex):
While the Justice Department also did not disclose to us the G.12 section of the 2011 DIOG, they did produce the part that it references, section 18.104.22.168.3, which contains the actual rules for approving NSLs, but the agency completely redacted it:
Another part of that same document makes another reference to members of the news media but discloses no more information:
In the next email, a lawyer from the national security division explains that even if a “decision relating to the media” falls outside the scope of the media guidelines - and to me that reads like they are talking about National Security Letters or FISA court orders - that the agency needs to at least let the criminal division of the Justice Department about it before proceeding.
Here, an unknown DOJ official is responding to the National Security Division lawyer complaining that a “broad reading” of the media guidelines is allegedly hindering leak investigations. (If that is true, good!)
In addition, we received long PowerPoint presentations that appear to be training materials for FBI agents seeking to use NSLs in investigations, including various redacted hypothetical situations clarifying when NSLs supposedly can and cannot be used. Lawyers and journalists who are interested in NSLs more generally should look at the whole presentation, but this particular slide shows us once again that there are secret rules for targeting journalists:
The same slide appears in a similar presentation in 2013.
You can read the complete set of documents we received below. Our lawsuit remains ongoing and we don’t plan on settling or stopping it until the secret rules for targeting journalists with National Security Letters are public.
As always, we'd like to thank our amazing pro bono legal team, Victoria Baranetsky and Marcia Hofmann, who have done the hard work making this case happen.