By Lena Williams:: On the same day President Obama signed a bill that significantly improves access to public records under the Freedom of Information Act, it was reported that secret FBI rules allow agents to obtain journalists’ phone records without their knowledge and without a court order.
So the president finally makes good on his 2009 promise for a more open and transparent government only to have it undermined by news that the nation’s prime law enforcement agency has been secretly spying on journalists.
All agents need in order to obtain journalists’ emails or phone records is a national security letter — an administrative subpoena used to gather all kinds of digital information for national security purposes and the signature of two FBI officials. Any superior officer will do.
The NSLs usually come with a gag order preventing the so-called “targets” from telling anyone they’re under surveillance by the FBI and don’t know why.
It’s one small step for the First Amendment, one giant leap backwards for freedom of the press.
And to think, if it weren’t for FOIA, the press and the public may never have known about the FBI’s clandestine operations.
The Freedom of the Press Foundation sued the Justice Department last year under FOIA for the classified rules governing NSLs. Last month, a coalition of 36 news organizations demanded the DOJ release the rules.
The DOJ has refused and there’s no indication that the bill Obama signed on June 30 would legally compel them to do so — even though the law requires agencies to operate from a presumption of openness and has a mandate that information can only be withheld under one of the FOIA’s nine exemptions.
The classified FBI rules were obtained by The Intercept, which published a story on its website June 30 that showed how the agency has been using provisions of the NSLs to secretly conduct warrantless and unconstitutional searches on journalists and their sources.
The Intercept said the documents show that the FBI imposes few constraints on itself when it bypasses the requirement to go to court and obtain subpoenas or search warrants before accessing journalists’ information.
The agency’s media guideline rules clearly stipulate that in order for the FBI to access journalists’ records with a NSL it can do so only after consultation with the general counsel and the assistant attorney general for national security. But agents have routinely circumvented the process by getting other FBI officials to sign off on NSLs claiming their investigations are relevant to national security.
“These supposed rules are incredibly weak and almost nonexistent as long as they have that second signoff they’re basically good to go,” said Trevor Timm, executive director of the Freedom of the Press Foundation. “The FBI is entirely able to go after journalists and with only one extra hoop they have to jump through.”
Media advocates say the FBI’s media guidelines rules are written to create a very high and restrictive bar for when and how the agency can spy on journalists using regular subpoenas and court orders. The rules that were leaked to The Intercept provide a disturbing inside look into an abuse of government power and a blatant disregard for the First Amendment rights of a free press.
The FBI issues thousands of NSLs each year — some 13,000 in 2015 — and is trying to expand the types of information it can demand with them.
The Inspector General has found significant problems with how the agency uses NSLs. The IG’s report found that the FBI used them during the Bush administration to conduct secret surveillance on several unnamed New York Times and Washington Post journalists.
Last year, then-Attorney General Eric Holder supposedly tightened restrictions on the Justice Department so the agency could not easily conduct surveillance on journalists’ emails and phone calls. The FBI either didn’t get the memo or doesn’t think it applies to its agents.
And I’m not sure we can even take Holder at his word.
Remember, only two years ago, under Holder’s leadership, the DOJ secretly subpoenaed the phone records of 100 Associated Press journalists in search of a leaker, without notifying the AP until after the surveillance was over. The DOJ also accessed the email account of Fox news reporter James Rosen and alleged in court documents that he was “aiding and abetting” violations of the Espionage Act.
I have the sneaky suspicion that Holder wouldn’t have issued his directive spelling out when and under what circumstances the government could conduct surveillance on reporters and simply looked the other way if his agency’s illegal spy games hadn’t become a public embarrassment.
For years the FBI has used and abused the guise of national security to get companies to hand over more revealing data on internet usage, which could include email header information.
Someone needs to put a stop to it and it won’t be Congress. Congressional leaders are currently debating whether to dramatically expand the FBI’s use of NSLs. To what end? Give the agency its blessing to treat journalists like criminals?
If President Obama wants to uphold the FOIA bill he signed earlier this month, he could start by revoking the FBI’s use of its NSL rules and put an end to the agency’s spy games once and for all.