The US Federal Bureau of Investigation (FBI) has a set of classified rules that allow its agents to obtain the telephone records of journalists without a probable-cause warrant. Rather than a warrant — or even a subpoena — to obtain the records, FBI agents need only obtain approval from two internal officials for a national security letter (NSL). Cora Currier writing for the Intercept reports that the publication obtained the classified rules that are dated 2013.
National security letters allow the government to obtain details of its citizens’ confidential financial information and communications without judicial oversight and are thought to be widely used specifically because they don’t require prior court approval. All that’s needed is a certification by an FBI field office that the information sought is relevant to a counterterrorism investigation. First approved by Congress in the 1980s to allow federal law enforcement agencies to monitor foreign agents without warrants, the use of NSLs grew dramatically in the post-9/11 PATRIOT Act hysteria.
National security letters are accompanied by a gag order preventing the target from disclosing anything about the surveillance, including the fact that they’ve received it.
In the apparently special case of journalists, a NSL “requires the signoff 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,” writes Currier. In the case where a surveillance target is a “confidential news media source,” Currier reports that the FBI’s general counsel and executive assistant director “must first consult with the assistant attorney general for the [US] Justice Department’s National Security Division.” When the FBI is merely trying to identify a whistleblower with the records of a potential source, there’s no need for Justice Department approval or knowledge.
If the targeted journalist is thought to be a spy or in any way believed to be acting on behalf of a foreign government, all bets are off and no extra oversight is required.
Currier reports that in 2013, then-Attorney General Eric Holder tightened the requirements when journalists are targeted for surveillance activities. This came, of course, after it became known that the Justice Department was secretly and warrantlessly surveilling journalists. But, ever so conveniently, Holder’s changes didn’t apply to NSLs.
