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.)
With the lawsuit, filed in federal court in New York, the groups are hoping to obtain updates to the media guidelines and documents about targeting journalists from the DOJ, CIA, National Security Agency, and the Office of the Director of National Intelligence. Freedom of the Press and Knight had requested those materials under the Freedom of Information Act, but the government responded with only two documents, both of which were already publicly available. (The Intercept’s parent company, First Look Media, provides support for Freedom of the Press Foundation, and multiple Intercept staffers serve on the foundation’s board.)
DeCell is also interested in the FBI’s use of national security letters — secret orders that the government can use to obtain certain phone records without judicial oversight. The Obama-era media guidelines did not cover NSLs, leaving press freedom advocates to worry that the loophole could be used to get around the protections in the guidelines.
Last year, The Intercept obtained a 2013 version of the FBI’s classified rules for the use of NSLs, which allow agents to demand that a telecommunications company turn over phone records showing who contacted whom and when (though not the content of calls or messages). Those rules, from the FBI’s main operating manual, the Domestic Investigations and Operations Guide, showed that NSLs could be used to target journalists and sources as part of a leak investigation. Two senior officials needed to sign off on any plan to get journalists’ records in order to identify their source – oversight that Trevor Timm, executive director of Freedom of the Press, has criticized as “basically nonexistent.”
The guidelines have supposedly been updated since, but the newer version has not been disclosed.
“The fact that the Justice Department has completely exempted national security letters from the Media Guidelines and can target journalists with them in complete secrecy is an affront to press freedom,” Timm wrote in a statement announcing the suit. “There’s absolutely no reason why these secret rules should not be public.”
The new lawsuit also seeks information on rules for surveillance of other types of constitutionally protected speech and association, not specific to journalists. The complaint cites the government’s far-reaching warrant in the prosecution of the “J20” protesters at Trump’s inauguration, which demanded the visitor logs, IP addresses, and more from everyone who checked out the website of protest organizers — some 1.3 million people.
“J20 strikes at the core of our request for information about broader First Amendment protected activities,” said DeCell. “The government is seeking information about people whose only connection to what they are building into a criminal case is not only ‘speaking’ on a website, but in this case, even just accessing the site.”
“We want to know how they are interpreting their ability to conduct investigative activity,” she added.