Tag Archives: National Security Letters

McCraw, David - National Security Letters and leak investigations - Just Security 20160120

McCraw, David - National Security Letters and leak investigations - Just Security 20160120

Journalists were reminded again last week of how little legal protection actually exists when the federal government decides to investigate national security leaks.

In an ongoing Freedom of Information Act suit, the Freedom of the Press Foundation has sought the guidelines used by the Justice Department in deciding when federal agents can use National Security Letters to pursue information about reporters. DOJ recentlyproduced documents in response to the suit. They confirm that the rules governing the use of NSLs in media leak cases remain classified. That undue secrecy cripples any real opportunity for public oversight of a process already encased in layers of secrecy.

DOJ’s position is a disappointment but hardly a surprise. In 2013, DOJ found itself in the center of a public storm when it was revealed that federal agents had secretly gathered telephone and email records from reporters at The Associated Press and Fox News during national security leak investigations. The investigators wanted the records to track down the government employees who had passed information to the press.

The AP and Fox revelations led to a series of meetings between Eric Holder and news organizations and ultimately to DOJ’s decision to revise its own guidelines for when subpoenas can be used to obtain reporters’ records. The guidelines were first implemented more than 40 years ago, and they recognize the chilling effect that subpoenas have on reporter-source relationships and therefore on the flow of information to the public. The guidelines are designed to make subpoenas targeting reporters a last resort, issued only after a high-level review within DOJ. Because there is no federal statutory privilege for journalists, and the courts have backed away from finding such a privilege in the First Amendment or common law, the guidelines are in fact an important bulwark against investigative overreaching by federal agents. The revised guidelines, released early in 2015, were intended to strengthen the protection afforded news gathering.

Fairly read, the revised guidelines do that — but even as the revisions were being hammered out in discussions between DOJ and representatives of the press, DOJ made clear that the guidelines would not apply to NSLs. It is a carve-out that cuts deeply.

It is not just that NSLs, typically used to obtain communication records from third parties, have none of the judicial oversight that attends to subpoenas. There is also the damaging impact of secrecy. An important element of the DOJ subpoena guidelines is providing news organizations with notice when their records are sought, subject to some specified exceptions. Notice gives an opportunity not only to make legal objections in court, but also to invite public scrutiny of government overreach. Jim Risen, the target of the long-running subpoena fight in the Jeffrey Sterling Espionage Act case, ultimately lost his legal challenges when federal prosecutors sought the identities of the confidential sources he used in reporting on the CIA’s deeply flawed efforts to undermine Iran’s nuclear capabilities. But there is no question that Risen’s ability to make his case to the public — to remind people of the importance of the confidential sources, of the chilling effect that subpoenas can have, and of his own commitment to go to jail to protect a source — played a role in the prosecutors’ belated decision to drop the subpoena after years of seeking the right to compel his testimony.

That the government has doubled down on secrecy by claiming the right to classify the rules that DOJ uses in deciding when NSLs can be employed to target reporters is made all the more troubling by documents obtained last year by The New York Times and its reporter Charlie Savage in another FOIA case. In a lawsuit that is ongoing in the Southern District of New York, we have sought to have DOJ declassify additional portions of the Inspector General reports on surveillance.

Responding to the suit, DOJ last year released thousands of pages of  documents following both a classification and FOIA review. Included in the release was a redacted account from a 2010 DOJ Inspector General report of three leak investigations in which agents secretly obtained records of reporters in violation of DOJ rules (apparently using investigative tools other than NSLs). The three cases involved The Times, the Washington Post, and an unnamed third news entity. In each instance, records were obtained from cell phone providers or other communications companies.

The Inspector General’s language was unsparing: “[T]he FBI’s acquisition of these records constituted a complete breakdown in the required Department procedures.” There were, the Inspector General concluded, “serious lapses in training, supervision, and oversight [that] led to the abuses.” The IG report notes that the law enforcement investigators claimed to be unaware of the special approval requirements that were in place for subpoenaing reporters’ records, and the federal prosecutors said that “they did not correctly understand that the terminology used in the subpoenas or attachments could result in the acquisition of reporters’ records.”

While the takeaway might be that the rules do not matter if agents and prosecutors are going to disregard basic professional obligations, the cases also serve to remind that, for NSLs, internal rules are our only real hope for a check on abuse. And that is why having those rules subjected to public oversight is critical.

DOJ has said that the NSLs are “subject to an extensive oversight regime.” But it is impossible to know whether the kinds of procedures baked into the subpoena guidelines — for instance, a showing by the prosecutor of proven need and a lack of alternative ways of getting the information sought — are mirrored in NSL guidelines. If they are not, there is every incentive for investigators to look to NSLs and avoid the restrictions of the subpoena process. (In my experience, leak investigations overwhelmingly arise from reporting about national security, making them NSL-eligible.) But the classification of the NSL rules takes meaningful discussion of even such a threshold concern off the public agenda.

That level of secrecy is impossible to square with any fair notion of transparency or any realistic assessment of what national security requires. Whatever we may think of the DOJ subpoena guidelines, we at least know what they say, and we can argue about their adequacy and their deficiencies and how well they balance law enforcement needs and the protection of press freedom.

All of which raises an obvious question: Why is it that DOJ cannot provide the same level of transparency when it comes to the NSL guidelines?

Timm, Trevor - When can the FBI use National Security Letters to spy on journalists? That’s classified - 20160111

Timm, Trevor - When can the FBI use National Security Letters to spy on journalists? That’s classified - 20160111

Remember one year ago when then-Attorney General Eric Holder supposedly tightened restrictions on the Justice Department so it could not easily conduct surveillance on journalists’ emails and phone calls? Well it turns out the Justice Department inserted a large loophole in its internal rules that allows the FBI to completely circumvent those restrictions and spy on journalists in secrecy—and with absolutely no court oversight—using National Security Letters.

And what, exactly, are the Justice Department’s rules for when they can target a journalist with a National Security Letter (NSL)? Well, according the government, that’s classified.

For those unfamiliar with NSLs, they are a particularly pernicious and controversial surveillance order that the FBI can serve on internet and communications providers to demand all sorts of digital information without any oversight from judges or courts. Worse, NSLs almost always have a gag order attached to them, preventing the phone or email companies not only from telling the target of the NSL that he or she is under surveillance but from publicly acknowledging they received an NSL at all. Various aspects of NSLs have been ruled unconstitutional in the past (including in a case still ongoing), but because of slight changes by Congress and the courts, they still persist.

In July 2015, Freedom of the Press Foundation—the organization I work for—sued the Justice Department under the Freedom of Information Act, seeking disclosure of the secret rules governing the use of NSLs to conduct surveillance on reporters. Over the past few weeks, we’ve received documents back from the government in response to the lawsuit that shed a little light on how the letters are used.

The crux of this case dates back to 2013 and 2014, when the Justice Department was stung by a public backlash over the outrageous surveillance the agency conducted on Associated Press and Fox News reporters while investigating reporters’ sources. At the time, the Justice Department had secretly subpoenaed over 20 AP phone lines affecting more than 100 AP journalists in search of a leaker, without notifying the AP until after the surveillance was over. In a separate case, the Justice Department got access to Fox News reporter James Rosen’s Gmail account and alleged in court documents that he was “aiding and abetting” violations of the Espionage Act.

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In response to intense criticism from news organizations, Holder vowed to update the agency’s “media guidelines,” which lay out when and how the government can obtain the phone or email records of journalists with subpoenas, warrants, and other types of court orders.

Over the next year the Justice Department altered its guidelines on two occasions; apart from a few quibbles, the changes seemed like big step forward. They raised the bar for when and how the government could conduct surveillance on reporters and (hopefully) would prevent what happened to the AP and Fox News from happening again.

But here’s the loophole: Holder’s changes to the media guidelines had no effect on using NSLs to spy on the communications records of journalists, because the guidelines don’t cover NSLs at all. As the Times’ Charlie Savage reported:

There is no change to how the F.B.I. may obtain reporters’ calling records via “national security letters,” which are exempt from the regular guidelines. A Justice spokesman said [NSLs are] “subject to an extensive oversight regime.”

We filed a FOIA request based on this reference in The New York Times(plus a redacted report the Justice Department had released earlier in the year), asking for the “extensive oversight regime” governing NSLs aimed at journalists to be made public. The Justice Department didn’t respond to our request for months, so in July, we sued.

Over the holiday break, we received two batches of documents from the Justice Department. In the released material—which includes Justice Department emails, training presentations and part of the agency’s internal rules for conducting investigations—the government confirms that the media guidelines “only apply to law enforcement tools, not national security tools,” and that those national security tools include NSLs, as well as secret FISA court orders.

The documents—which you can read in full here—also confirm that the Justice Department’s rules for issuing such surveillance orders on journalists are classified. The government has redacted the rules in emails that reference them. Shamefully, the government is still claiming that those rules should remain secret.

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A redacted page in the Justice Department’s Domestic Investigations and Operations Guide (DOIG) makes clear the government can spy on journalists with NSLs while circumventing the Attorney General’s media guidelines.

It’s not just a hypothetical worry that the FBI will use NSLs to spy on journalists. The government itself—in heavily redacted Inspector General reports—has admitted to using NSLs to conduct secret surveillance on unnamed New York Times and Washington Post journalists during the George W. Bush administration. Three-time Pulitzer-winning reporter Barton Gellman revealed in 2014 that he had been told that his phone records were also obtained by the government using an NSL.

And it’s quite possible there has been more surveillance we just don’t know about, given that hundreds of thousands of NSLs have been issued in secrecy since 9/11.

Given that all federal leak prosecutions in the past decade that have involved the surveillance of journalists were national security cases, why should the revised media guidelines comfort journalists at all? Instead of having to follow the strict media guidelines, instead of serving subpoenas or warrants, the FBI and Justice Department can simply use NSLs and FISA court orders under even more sweeping secrecy rules than they did in the AP and Fews News cases.

These are just the first documents we‘ve received in this lawsuit. Freedom of the Press Foundation will continue to fight until the Justice Department releases its secret rules for targeting members of the media with national security orders.