the FBI’s secret rules for targeting journalists and sources with National Security Letters (NSLs)—the controversial and unconstitutional warrantless tool the FBI uses to conduct surveillance without any court supervision whatsoever.
Freedom of the Press Foundation has been suing the Justice Department (DOJ) under the Freedom of Information Act for these secret rules for the past year. Just two weeks ago, a coalition of three dozen news organizations, including the New York Times and Associated Press, demanded the DOJ release them. The DOJ, so far, has refused.
The leaked rules The Intercept has published give us a revealing and startling look at how the FBI can conduct surveillance of journalists in complete secrecy and with no court oversight.
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 complete 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 andrepeatedly 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 laid out in the DOJ media guidelines: like get the Attorney General to sign off, exhaust all other means of investigation, alerting and negotiating with the affected media organization, making sure what is being sought is essential to the investigation, etc.
The leaked rules are from the classified annex of the FBI’s Domestic Investigations and Operations Guide. The guide itself is dated 2011, though the particular section was active as of at least 2013. A redacted version of this guide is available on the FBI’s website, but their version censors virtually all the rules themselves. Documents previously released in our lawsuit indicate these rules may have been updated in the last two years. The leaked rules from 2013 state, in part:
