Mimesis Law
5 July 2020

The Scoop: FBI Uses Secret Rules to Snoop On The Press

July 7, 2016 (Fault Lines) — Usually when we hear the phrase, “made in-house” or “homemade,” we think of a process in gastronomy that is unadulterated from the outside, that is pure.  But when it comes to federal law enforcement, “in-house” does not evoke similar sentiments, and a case in point is how the FBI has been using its own secret rules to bypass the need to go to court before spying on journalists.  From The Intercept:

The classified rules, obtained by The Intercept and dating from 2013, govern the FBI’s use of national security letters, which allow the bureau to obtain information about journalists’ calls without going to a judge or informing the news organization being targeted. They have previously been released only in heavily redacted form.

Media advocates 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 process usually starts with the FBI drafting of a National Security Letter, or NSL, which is an administrative subpoena that does not require the rubber stamping approval of a Judge. There are a few hoops of its own that the Bureau must go through in certain cases: if the NSL targets a journalist “to identify confidential news sources,” the FBI’s general counsel and the executive director of its National Security Branch must first meet with the Attorney General for the Department of Justice’s National Security Division.

But there is a caveat to this in-house process.  If the NSL’s purpose is to identify a leaker of information by subpoenaing a potential source, and not the target journalist, there is no need to consult with the U.S. Department of Justice.  The same applies when the FBI believes that the journalist is a spy, is part of a news organization “associated with a foreign intelligence service,” or acting on behalf of a foreign power.

As to whether the FBI needing a green light from its parent organization, the DOJ, provides an adequate safeguard against capricious and illegal surveillance by the former has yet to be seen.  It doesn’t appear that the FBI is typing up 302s after every meeting regarding the NSLs.

What’s more, the recipient of these letters — which may include banks, telephone companies and Internet service providers — are gagged from telling anyone except their lawyers that they received an NSL, let alone its contents.  To date, hundreds of thousands NSLs have been sent, with little or no oversight.  Brewster Kahle, founder of the nonprofit Internet Archive and recipient of an NSL is one of the few permitted to describe the experience:

The lawyers for the Internet Archive asked to have a private meeting, with no one else there but me. And they said, we’ve just received a national-security letter, to find out a lot of detailed information about a patron of the Internet Archive.

They were sort of grim:“Let’s lock the doors, you’ll be the only person who hears about this.” They said that, according to the law, you have to give them the information they want, and you can only talk to people such that you can fulfill this request. Other than that, there’s nothing else you can do, and then you can’t ever mention it to anybody, ever.

So I asked, “Can I bring this up with my board?” And the answer is no. Could I discuss it with my wife? The answer is no, not without risking being put in prison for years.

All this is happening in an age where the Executive is breaking records for leak prosecutions, while its Chief tries his best to justify the crackdowns.  But wait! There’s another way for the FBI to “get around” the DOJ’s approval when it comes to NSLs:

The FBI could also potentially demand journalists’ information through an application to the Foreign Intelligence Surveillance Court (or FISA court), which, like NSLs, would also not be covered by the Justice Department policy. The rules for that process are still obscure. The emails about revisions to the FBI guidelines reference a “FISA portion,” but most of the discussion is redacted.

The FISA court may provide yet another forum for the FBI to keep issuing NSLs without the need for approval or oversight from a truly neutral referee.  Notice which two phrases have been completely absent from this discussion? “Open adversarial hearings” and “defense attorneys.”

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