A pair of 2015 memos, from former attorney general Eric Holder to the Department of Justice’s National Security Division, show how the government could use court orders under the Foreign Intelligence Surveillance Act (FISA) to monitor the communications of journalists and news organizations. The Knight First Amendment Institute at Columbia University and the Freedom of the Press Foundation obtained the documents through a Freedom of Information Act (FOIA) request and a lawsuit challenging the lack of disclosure that request yielded.
Since 1978, the Foreign Intelligence Surveillance Court has processed requests by federal law enforcement and intelligence agencies for electronic surveillance, physical searches, and other forms of investigative actions for foreign intelligence purposes. Holder’s pair of memos spell out the circumstances for processing FISA applications that target “known media entities” or “known members of the media.” As Cora Currier reported for the Intercept, the secret rules “apply to media entities or journalists who are thought to be agents of a foreign government, or, in some cases, are of interest under the broader standard that they possess foreign intelligence information.” Ramya Krishnan, a staff attorney with the Knight Institute, told the Intercept, “There’s a lack of clarity on the circumstances when the government might consider a journalist an agent of a foreign power.” For example, because RT America registered with the Department of Justice as a “foreign agent” in November 2017, reporters working for RT America—and their sources—could be subject to FISA court-ordered surveillance. For its part, RT reported that the details specified in the memos suggested that it was “highly likely” that both the Trump and Obama administrations had surveilled journalists that they considered to be “foreign agents.”
The revealed memos raise three “concerning” questions about the government’s surveillance of news organizations and journalists, according to Trevor Timm, director of the Freedom of the Press Foundation. First, how many times have FISA court orders been used to target journalists, and are any journalists currently under investigation? Second, why did the Justice Department keep these rules secret when it updated its “media guidelines” in 2015? And, third, is the Justice Department using FISA court orders—along with the FBI’s similar rules for targeting journalists with national security letters (NSLs)—to “get around the stricter ‘media guidelines’”?
Historically, the First Amendment has limited surveillance of journalists, as well as efforts to determine their sources. As Cora Currier reported for the Intercept, in January 2015, after the Obama administration secretly seized phone records from the Associated Press and named a Fox News reporter as a co-conspirator in a leak case, Attorney General Eric Holder revised the set of procedures, known as the “media guidelines,” for when government officials could subject journalists to surveillance. Though the secret 2015 memos specify that FISA applications must be presented to the attorney general or the deputy attorney general for approval before they are submitted to the Foreign Intelligence Surveillance Court, the memos allow for exceptions and, as Trevor Timm and others noted, FISA rules are “much less stringent” than the Justice Department’s media guidelines for obtaining subpoenas, court orders, and warrants against journalists. The procedures governing FISA surveillance and national security letters allow government officials to circumvent the media guidelines’ requirements that the information sought is “essential” to a successful investigation, that “reasonable alternative attempts” have been made to obtain the information, and that the government inform the journalist and negotiate with them.
Although reporters are probably aware that they may be subject to surveillance, their sources may not be. The unredacted portions of the Justice Department memos do not specify how to handle information that is gathered, or how to mitigate risks posed by exposing journalists’ sources.
Corporate news outlets reported little to nothing in September 2018 when the Freedom of the Press Foundation and the Knight First Amendment Institute made public the two secret memos on targeting journalists and news organizations. In Spring 2019, a flurry of news stories and editorials, triggered partly by the Mueller Report, focused on Carter Page—a petroleum industry consultant who served as Donald Trump’s foreign-policy adviser during his 2016 presidential election campaign. In October 2016, the FBI had wiretapped Page under authority of a FISA warrant based on evidence that he was operating as a foreign agent on behalf of Russia. However, controversy over the use of a FISA warrant to surveil a former Trump campaign adviser has done nothing at all to raise awareness of the threats posed by FISA warrants that target journalists and news organizations.
Ramya Krishnan, the staff attorney for the Knight Institute, summarized the stakes: “National security surveillance authorities confer extraordinary powers. The government’s failure to share more information about them damages journalists’ ability to protect their sources, and jeopardizes the newsgathering process.”
Trevor Timm, “Revealed: The Justice Dept’s Secret Rules for Targeting Journalists with FISA Court Orders,” Freedom of the Press Foundation, September 17, 2018, https://freedom.press/news/revealed-justice-depts-secret-rules-targeting-journalists-fisa-court-orders/, republished by Common Dreams, September 17, 2018, https://www.commondreams.org/views/2018/09/17/revealed-justice-depts-secret-rules-targeting-journalists-fisa-court-orders.
Ramya Krishnan, “Targeting Journalists under FISA: New Documents Reveal DOJ’s Secret Rules,” Knight First Amendment Institute (Columbia University), September 17, 2018, https://knightcolumbia.org/news/targeting-journalists-under-fisa-new-documents-reveal-dojs-secret-rules.
Cora Currier, “Government Can Spy on Journalists in the U.S. Using Invasive Foreign Intelligence Process,” The Intercept, September 17, 2018, https://theintercept.com/2018/09/17/journalists-fisa-court-spying/.
Jessica Corbett, “The US Government’s Secret Rules for Spying on Journalists are ‘Terrifying,’” MintPress News, September 18, 2018, https://www.mintpressnews.com/journalists-govenment-surveillance/249471/.
“US Can Spy on Journalists Domestically Using FISA Warrants, Declassified Guidelines Show,” RT, September 19, 2018, updated September 20, 2018, https://www.rt.com/usa/438785-fisa-spying-journalists-declassified/.
Student Researcher: Andrea Blado (Sonoma State University)
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