A president seemingly hostile to the press and whose supporters think he should have the power to abolish news outlets also has a Department of Justice (DOJ) that could easily target the media with surveillance, according to the Freedom of the Press Foundation.
The Foundation reports that the DOJ’s rules for obtaining Foreign Intelligence Surveillance Act (FISA) court orders is an entirely different animal from the rules for procuring traditional subpoenas, court orders, and warrants against journalists. Investigators requesting surveillance permission by FISA court parameters can duck many of the fail-safes put in place by former Attorney General Eric Holder.
The Department of Justice under President Barack Obama caused outrage after numerous unsavory acts of surveillance, including incidents of secretly obtaining journalists’ phone records. The resulting scandal prompted Holder, then Attorney General, to instate rules for obtaining subpoenas, court orders, and warrants against journalists, which were laid out in the Justice Department’s “media guidelines” in 2015.
Under Holder’s guidelines, general surveillance requests now require a multi-part test before investigators can target journalists. They also have to certify that the information they need to extract is critical to an investigation, that it can’t be obtained through any other less invasive means, and that the DOJ has exhausted all other methods of research before resorting to this brand of surveillance. In addition, investigators also have to get approval from the Attorney General himself.
But that’s not the case for the FISA court orders, which Holder also instituted in 2015. That process is worryingly lenient, according to the Freedom of the Press Foundation, which submitted a FOIA request with the Knight First Amendment Institute at Columbia University, and recently received a copy of the FISA court rules.
“With the FISA court rules, there is no multi-part test that we know of,” said foundation Executive Director Trevor Timm in a press release. “The DOJ only must follow its regular FISA court procedures (which can be less strict than getting a warrant in a criminal case) and get additional approval from the Attorney General or Assistant Attorney General. FISA court orders are also inherently secret, and targets are almost never informed that they exist.”
The revelation brings several concerns to bear, including the number of times journalists have already been subject to FISA court orders and the question of why the Justice Department chose to keep these rules under wraps in the first place.
Timm said there is also the question of why the FBI’s nearly identical rules for targeting reporters is still considered classified if the FISA court rules are now public, and whether or not the DOJ is hitting journalists with FISA court orders in a deliberate effort to evade the more stringent media guidelines.
Grit Post reached out to Reporters Committee for Freedom of the Press for comment, but did not receive a response as of publication.
Adam Lynch is a glorified secretary, researcher and part-time “word-puncher” who routinely picks fights with politicians in Jackson, Mississippi. Battle with him on Twitter @A_damn_Lynch. He’s also on Facebook, if that’s still a thing.