Eleven months ago, we wrote about a
lawsuit filed by the Freedom of the Press Foundation seeking to get a copy of the DOJ's infamous
new rules for spying on journalists. The new rules came about after it had come out that the DOJ had
spied on Associated Press reporters as well as lied to a court to claim that Fox News reporter James Rosen was a
co-conspirator in a leak investigation. To date, the DOJ has steadfastly refused to reveal the rules. Thankfully, someone has now
leaked the rules, or at least the
2013 version of some of the rules, which show that, contrary to what then Attorney General Eric Holder had suggested, it's still ridiculously easy for the FBI to spy on reporters and their sources in trying to hunt down a leak. In fact, it appears that these rules, around the use of NSLs are actually separate from the rules that Holder was talking about -- meaning that there's an entirely separate path for the DOJ to spy on journalists. The rules show that the FBI can just issue a National Security Letter (NSL), the mechanism that the FBI has been known to
regularly abuse without consequence and which it's trying to
expand. The "process" by which the media is supposedly protected under these new rules is that if someone in the DOJ is seeking an NSL to get phone records of someone in the media, they need to get some permission from someone else in the DOJ first:
This is the fox watching the henhouse. These are not restrictions, these are just the DOJ getting to ask itself if it really wants to spy on these journalists, and the DOJ telling itself "sure, go ahead." There's a further exception that if someone is a member of the media, but the FBI "suspects" they're an intelligence officer or affiliated with a foreign intelligence service, "no additional approval requirements" are needed. So, as with the Rosen case, the FBI can just declare him a "co-conspirator" and voila, no approval necessary. As the Freedom of the Press Foundation
explains in response to this leak, this completely undermines the claims by the DOJ that there were strict controls on spying on journalists:
First, the rules clearly indicate—in two separate places—that NSLs can specifically be used to conduct surveillance on reporters and sources in leak investigations. This is quite disturbing, since the Justice Department spent two years trying to convince the public that it updated its “Media Guidelines” to create a very high and restrictive bar for when and how they could spy on journalists using regular subpoenas and court orders. These leaked rules prove that the FBI and DOJ can completely circumvent the Media Guidelines and just use an NSL in total secrecy.
Second, the DOJ told the New York Times in 2013 that, despite NSLs being exempt from the media guidelines, they were still used under a “strict legal regime.” Well, the “strict legal regime” here is basically non-existent. The only extra step the FBI has to go through to spy on journalists with an NSL—besides the normal, lax NSL procedures, which they have flagrantly and repeatedly violated over the past decade—is essentially get the sign off of a superior in the Justice Department. That’s it! They don’t have to even go through the motions for following any of the several rules
