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.”
“This is a huge surprise.”
The documents were turned over by the Justice Department’s Office of Information Policy to the Freedom of the Press Foundation and the Knight First Amendment Institute as part of an ongoing lawsuit seeking the Trump administration’s rules for when and how the government can spy on journalists, including during leak investigations. Freedom of the Press and Knight shared the documents with The Intercept.