I’m guessing that, because AAN members generally focus on local issues, not those relating to national security, few (if any) have been subject to investigation by the federal government relating to leaks of classified information. Then again, we really don’t know, do we? Because the Department of Justice (DOJ), for one has, in certain (more than a few) instances, acted to collect information about journalists’ Emails and telephone calls in secret.
You may recall that, in 2013 the DOJ secretly subpoenaed the telephone records of more than 100 journalists working for the Associated Press. This resulted in media and public outcry to the point that the DOJ met with representatives of major companies and press organizations (including me) to discuss revisions to the voluntary guidelines the Department created in 1970 regarding issuance of subpoenas to and about the media.
After a few meetings, discussions and mutual revisions, new guidelines were issued in 2014. However, almost as soon as those new guidelines regarding subpoenas to and about the media were issued, the DOJ noted that they believe that so-called “National Security Letters” (NSLs) are not equal to subpoenas and, as a result, the new procedures in place to limit the arbitrary use of subpoenas where media are involved don’t apply to NSLs (if you’re not familiar with an “NSL”, it is a purely administrative subpoena issued under the Electronic Privacy Communications Act without the requirement of prior court approval).
That’s where the Freedom of the Press Foundation comes in. It filed a FOIA request with the FBI seeking records regarding the FBI’s use of NSLs and other methods to obtain the toll billing records of journalists. That request was denied, with the FBI stating that its internal policies and procedures regulating the use of NSLs to obtain journalists’ communication records are exempt from disclosure under FOIA. The Freedom of the Press Foundation appealed. That appeal was, predictably, denied. That’s when this lawsuit was filed.
We are one of 38 organizations and companies who joined a brief drafted by the Reporters Committee for Freedom of the Press which addresses several policy issues in support of the Freedom of the Press Foundation.
The first section explains the overall importance of the DOJ guidelines. They are a means of restraining the government’s investigative and prosecutorial powers to avoid infringing on newsgathering. Unfortunately, the guidelines do not address NSLs or Foreign Surveillance Intelligence Act (FISA) warrants or applications – even though these issues really need to be addressed.
The brief recounts the subpoenas issued for the phone records of the AP reporters and a similar search warrant issued for the Emails of Fox News reporter James Rosen, who was identified as a “co-conspirator’ in a leak investigation solely for the purpose of obtaining those Emails. Only when these warrants were revealed did President Obama and then-Attorney General Eric Holder review the DOJ’s guidelines. But this reform process did not address NSLs or FISA warrants; in light of the DOJ’s distinction between subpoenas and warrants being covered by the Guidelines and NSLs and FISA warrants not being covered, the government’s reluctance to disclose what policies and procedures are applicable to NSLs and FISA warrants is troubling.
This is clearly a matter of public concern, as it affects the reporter-source relationship. We know little about the DOJ’s procedures with regard to NSLs and FISA warrants but what we do know – via an appendix released in 2011 – seems to indicate that some procedures exist. However, that appendix is heavily redacted.
The government’s position that releasing these policies and procedures would enable individuals to “evade detection and circumvent the law” is without merit. It is also inconsistent with the spirit of the old and new Guidelines and the rapprochement between media and DOJ that led to their revision.
Disclosure with regard to NSLs is extremely important because, unlike typical search warrants, there are little to no procedural safeguards applied to NSLs. They generally are used at the outset of an investigation as part of a “fishing expedition” to collect information. A judge typically does not have to review and NSL before it is issued and the target of the NSL (the reporter whose phone or Email records are being collected) does not have to be notified. Sometimes the recipient and/or subject of the NSL is even prohibited (or, to put it another way, censored) from speaking about the existence of the NSL. Any limitations on their abuse are entirely self-imposed – but we don’t know how or when the DOJ would impose those limitations (if at all).
This all has a real impact on the media. It was well documented after the AP and James Rosen situations came to light that sources were hesitant to talk to Rosen or to AP reporters, even on stories that weren’t about national security. That chilling effect likely still exists and will continue to exist in the future if we remain in the dark about when and how the DOJ might use NSLs.
So, while we hope that no AAN members are currently being surveilled by the DOJ or any other federal government agencies (even though, to some extent, that could simply mean “you’re doing it right”), this brief aims to help us find out if that’s the case.