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Government Can Spy On Journalists in the U.S. Using Invasive Foreign Intelligence Process

THE U.S. GOVERNMENT can monitor journalists under a foreign intelligence law that allows invasive spying and operates outside the traditional court system, according to newly released documents.

Targeting members of the press under the law, known as the Foreign Intelligence Surveillance Act, requires approval from the Justice Department’s highest-ranking officials, the documents show.

In two 2015 memos for the FBI, the attorney general spells out “procedures for processing Foreign Intelligence Surveillance Act applications targeting known media entities or known members of the media.” The guidelines say the attorney general, the deputy attorney general, or their delegate must sign off before the bureau can bring an application to the secretive panel of judges who approves monitoring under the 1978 act, which governs intelligence-related wiretapping and other surveillance carried out domestically and against U.S. persons abroad.

The high level of supervision points to the controversy around targeting members of the media at all. Prior to the release of these documents, little was known about the use of FISA court orders against journalists. Previous attention had been focused on the use of National Security Letters against members of the press; the letters are administrative orders with which the FBI can obtain certain phone and financial records without a judge’s oversight. FISA court orders can authorize much more invasive searches and collection, including the content of communications, and do so through hearings conducted in secret and outside the sort of adversarial judicial process that allows journalists and other targets of regular criminal warrants to eventually challenge their validity.

“This is a huge surprise,” said Victoria Baranetsky, general counsel with the Center for Investigative Reporting, previously of Reporters Committee for the Freedom of the Press. “It makes me wonder, what other rules are out there, and how have these rules been applied? The next step is figuring out how this has been used.”

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Has Trump Made It Easier to Spy on Journalists? Lawsuit Demands Answers.

National Counterintelligence and Security Center Director William Evanina (2ndR), US Attorney General Jeff Sessions (R) and bodyguards stand at the Department of Justice during an announcement about leaking of classified information on August 4, 2017 in Washington, DC.US Attorney General Jeff Sessions on Friday condemned the 'staggering number' of leaks emanating from President Donald Trump's administration, as he vowed a crackdown on people revealing classified or sensitive national security information. / AFP PHOTO / Brendan Smialowski (Photo credit should read BRENDAN SMIALOWSKI/AFP/Getty Images)
Photo: Brendan Smialowski/AFP/Getty Images

PRESS FREEDOM GROUPS filed suit today to force the government to disclose more about how and when it obtains journalists’ communications, amid reports that the Department of Justice under Attorney General Jeff Sessions is pursuing a record number of leak investigations.

The question the groups hope to answer is whether the Trump administration — openly hostile toward news media — has jettisoned or modified rules that limit the government’s ability to spy on journalists while they do their jobs.

Those rules were made more stringent by former President Barack Obama’s attorney general Eric Holder in 2014, after outcry when it was revealed that the administration had secretly obtained call records from the Associated Press and surveilled a Fox News reporter, naming him a co-conspirator in a national security leak case. Holder pledged that his department would go after journalists’ records in criminal cases only as a “last resort.”

Carrie DeCell, a staff attorney with Knight First Amendment Institute, which is bringing the suit along with the Freedom of the Press Foundation, said that “we have seen the DOJ media guidelines that Obama released, but we understand that Sessions is reconsidering those guidelines, and the way the government uses subpoenas against journalists.”

In August, Sessions announced that his department was reviewing the guidelines as part of a crackdown on leaks but did not specify what changes might be made. Sessions also told Congress this month that he has 27 investigations open into leaks of classified information to reporters – compared to just three last year. (Not all leaks are illegal, and many of the disclosures that Trump has publicly complained about would likely not be considered criminal.)

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