In the last 2 weeks missing passage by one vote, INCLUDING the assent
of Sen Ted Cruz, the govt almost gave the FBI the right to view YOUR
browser history without a court ordered warrant.
Of what use
is the Constitution under the onslaught of 2 of the 3 branches of govt
when they exhibit little desire to enforce it, and in fact see it as an
impediment to the expedience of today’s policy?
July 1, 2016
Secret Rules Make It Pretty Easy for the FBI to Spy on
June 30, 2016
Secret FBI rules
allow agents to obtain journalists’
phone records with approval from two internal officials — far less
oversight than under normal judicial procedures.
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’
The rules stipulate that obtaining a journalist’s records with a
National Security Letter (or NSL) requires the sign-off of the FBI’s
general counsel and the executive assistant director of the bureau’s National Security Branch
in addition to the regular chain of approval. Generally speaking, there
are a variety of FBI officials, including the agents in charge of field
offices, who can sign off
that an NSL is “relevant” to a national security investigation.
There is an extra step under the rules if the NSL targets a
journalist in order “to identify confidential news media sources.” In
that case, the general counsel and the executive assistant director must
first consult with the assistant attorney general for the Justice
Department’s National Security Division.
But if the NSL is trying to identify a leaker by targeting the
records of the potential source, and not the journalist, the Justice
Department doesn’t need to be involved.
The guidelines also specify that the extra oversight layers do not
apply if the journalist is believed to be a spy or is part of a news
organization “associated with a foreign intelligence service” or
“otherwise acting on behalf of a foreign power.” Unless, again, the
purpose is to identify a leak, in which case, the general counsel and
executive assistant director must approve the request.
“These supposed rules are incredibly weak and almost nonexistent — as
long as they have that second sign-off they’re basically good to go,”
said Trevor Timm, executive director of the Freedom of the Press
Foundation, which has sued
the Justice Department for the release of these rules. “The FBI is
entirely able to go after journalists and with only one extra hoop they
have to jump through.”
A spokesperson for the FBI, Christopher Allen, declined to comment on
the rules or say if they had been changed since 2013, except to say
that they are “very clear” that “the FBI cannot predicate investigative
activity solely on the exercise of First Amendment rights.”
The Obama administration has come under criticism for bringing a record
number of leak prosecutions, and aggressively targeting journalists in
the process. In 2013, after it came out that the Justice Department had secretly seized records
from phone lines at the Associated Press and surveilled
Fox News reporter James Rosen, then-Attorney General Eric Holder tightened
the rules for when prosecutors could go after journalists. The new policies
emphasized that reporters would not be prosecuted for “newsgathering
activities,” and that the government would “seek evidence from or
involving the news media” as a “last resort” and an “extraordinary
measure.” The FBI could not label reporters as co-conspirators in order
to try to identify their sources — as had happened with Rosen — and it
became more difficult to get journalists’ phone records without
notifying the news organization first.
Yet these changes did not apply
to NSLs. Those are governed by a separate set of rules, laid out in a
classified annex to the FBI’s operating manual, known as the Domestic
Investigations and Operations Guide, or DIOG. The full version of that
guide, including the classified annex, was last made public in redacted form
The section of the annex on NSLs obtained by The Intercept
dates from October 2013 and is marked “last updated October 2011.” It
is classified as secret with an additional restriction against
distribution to any non-U.S. citizens.
Emails from FBI lawyers in 2015, which were released
earlier this year to the Freedom of the Press Foundation, reference
an update to this portion of the DIOG, but it is not clear from the heavily redacted emails what changes were actually made.
In a January 2015 email
to a number of FBI employee lists, James Baker, the general counsel of
the FBI, attached the new attorney general’s policy and wrote that “with
the increased focus on media issues,” the FBI and Justice Department
would “continue to review the DIOG and other internal policy guides to
determine if additional changes or requirements are necessary.”
“Please be mindful of these media issues,” he continued, and advised
consulting with the general counsel’s office “prior to implementing any
techniques targeting the media.” But the email also explicitly notes
that the new guidelines do not apply to “national security tools.”
Allen, the FBI spokesperson, told The Intercept
an emailed statement that “the FBI periodically reviews and updates the
DIOG as needed” and that “certainly the FBI’s DIOG remains consistent
with all [Attorney General] Guidelines.”
Bruce Brown, executive director of the Reporters Committee for
Freedom of the Press, said that the “use of NSLs as a way around the
protections in the guidelines is a serious concern for news
Last week, the Reporters Committee filed a brief
in support of the Freedom of the Press Foundation’s lawsuit for the
FBI’s NSL rules and other documents on behalf of 37 news organizations
including The Intercept
’s publisher, First Look Media.
(First Look also provides funding to both the Reporters Committee and
the Freedom of the Press Foundation, and several Intercept
staffers serve on the foundation’s board.)
Seeing the rules in their un-censored form,
Timm, of the Freedom of the Press Foundation, said that the FBI should not have kept them classified.
“Redacting the fact that they need a little extra sign-off from
supervisors doesn’t come close to protecting state secrets,” he said.
The FBI issues thousands of NSLs each year, including nearly 13,000 in 2015
. Over the years, a series of Inspector General reports found significant problems
with their use, yet the FBI is currently pushing
to expand the types of information it can demand with an NSL. The scope
of NSLs has long been limited to basic subscriber information and toll
billing information — which number called which, when, and for how
long — as well as some financial and banking records. But the FBI had made a habit
of asking companies to hand over more revealing data
internet usage, which could include email header information (though
not the subject lines or content of emails) and browsing history. The
2013 NSL rules for the media only mention telephone toll records.
Another controversial aspect of NSLs is that they come with a gag
order preventing companies from disclosing even the fact that they’ve
received one. Court challenges and legislative changes have loosened
that restriction a bit, allowing companies to disclose how many NSLs
they receive, in broad ranges
, and in a few cases, to describe the materials
the FBI had demanded of them in more detail. Earlier this month, Yahoo became the first company to release
three NSLs it had received in recent years.
It’s unclear how often the FBI has used NSLs to get journalists’ records. Barton Gellman, of the Washington Post
, has said
that he was told his phone records had been obtained via an NSL.
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.
For Brown, of the Reporters Committee, the disclosure of the rules
“only confirms that we need information about the actual frequency and
context of NSL practice relating to newsgathering and journalists’
records to assess the effectiveness of the new guidelines.”