DOJ Will Continue to Use NSLs to Get Journalist Contacts

For years, I have been harping on the language in FBI’s Domestic Investigations and Operations Guide that permits DOJ to get journalists’ contact information using NSLs because — given that they are not warrants — they need no Attorney General review.

A heavily-redacted section (PDF 166) suggests that in investigations with a national security nexus (so international terrorism or espionage, as many leak cases have been treated) DOJ need not comply with existing restrictions requiring Attorney General approval before getting the phone records of a journalist. The reason? Because NSLs aren’t subpoenas, and that restriction only applies to subpoenas.

Department of Justice policy with regard to the issuances of subpoenas for telephone toll records of members of the news media is found at 28 C.F.R. § 50.10. The regulation concerns only grand jury subpoenas, not National Security Letters (NSLs) or administrative subpoenas. (The regulation requires Attorney General approval prior to the issuance of a grand jury subpoena for telephone toll records of a member of the news media, and when such a subpoena is issued, notice must be given to the news media either before or soon after such records are obtained.) The following approval requirements and specific procedures apply for the issuance of an NSL for telephone toll records of members of the news media or news organizations. [my emphasis]

So DOJ can use NSLs–with no court oversight–to get journalists’ call (and email) records rather than actually getting a subpoena.

The section includes four different approval requirement scenarios for issuing such NSLs, almost all of which are redacted. Though one only partly redacted passage makes it clear there are some circumstances where the approval process is the same as for anyone else DOJ wants to get an NSL on:

If the NSL is seeking telephone toll records of an individual who is a member of the news media or news organization [2 lines redacted] there are no additional approval requirements other than those set out in DIOG Section 18.6.6.1.3 [half line redacted]

And the section on NSL use (see PDF 100) makes it clear that a long list of people can approve such NSLs:

  • Deputy Director
  • Executive Assistant Director
  • Associate EAD for the National Security Branch
  • Assistant Directors and all DADs for CT/CD/Cyber
  • General Counsel
  • Deputy General Counsel for the National Security Law Branch
  • Assistant Directors in Charge in NY, Washington Field Office, and LA
  • All Special Agents in Charge

In other words, while DOJ does seem to offer members of the news media–which is itself a somewhat limited group–some protection from subpoena, it also seems to include loopholes for precisely the kinds of cases, like leaks, where source protection is so important.

See also this post, where I tried to write it really plainly.

Then, last year, after it got caught obtaining the call records of some Pulitzer Prize winners, DOJ pretended to roll out new protections for journalists.

Charlie Savage reports that DOJ has just rolled out the final version of those great new protections.

Here’s the last paragraph of his report on the “new guidelines.”

The rules cover grand jury subpoenas used in criminal investigations. They exempt wiretap and search warrants obtained under the Foreign Intelligence Surveillance Act and “national security letters,” a kind of administrative subpoena used to obtain records about communications in terrorism and counterespionage investigations.

Which makes these “new guidelines” worth approximately shit in any leak — that is, counterintelligence — investigation.

Marcy has been blogging full time since 2007. She’s known for her live-blogging of the Scooter Libby trial, her discovery of the number of times Khalid Sheikh Mohammed was waterboarded, and generally for her weedy analysis of document dumps.

Marcy Wheeler is an independent journalist writing about national security and civil liberties. She writes as emptywheel at her eponymous blog, publishes at outlets including the Guardian, Salon, and the Progressive, and appears frequently on television and radio. She is the author of Anatomy of Deceit, a primer on the CIA leak investigation, and liveblogged the Scooter Libby trial.

Marcy has a PhD from the University of Michigan, where she researched the “feuilleton,” a short conversational newspaper form that has proven important in times of heightened censorship. Before and after her time in academics, Marcy provided documentation consulting for corporations in the auto, tech, and energy industries. She lives with her spouse and dog in Grand Rapids, MI.

6 replies
  1. lefty665 says:

    Trust Pierre’s got some really good encryption for you guys, those public keys look pretty good. That doesn’t do much for traffic analysis on meta though. It’s hard work being discreet.

  2. JamesJoyce says:

    As Bruno was targeted by Church and burnt, the restriction placed on government’s behavior to avoid such scenarios is being burnt, under the color of law. Nuremberg Laws denied specific groups of peoples protections. Now we have all sorts of government entities with increased powers all designed to limit the free expression of political opinion and thought. This is not good government. Deja Vu!

  3. JohnT says:

    A little off topic

    Uh, yea, about Zero’s promise to Merkel …? It was just weasel words

    (Reuters) – The National Security Agency (NSA) has stepped up its surveillance of senior German government officials since being ordered by Barack Obama to halt its spying on Chancellor Angela Merkel, Bild am Sonntag paper reported on Sunday.

    Revelations last year about mass U.S. surveillance in Germany, in particular of Merkel’s mobile phone, shocked Germans and sparked the most serious dispute between the transatlantic allies in a decade.

    Bild am Sonntag said its information stemmed from a high-ranking NSA employee in Germany and that those being spied on included Interior Minister Thomas de Maiziere, a close confidant of Merkel.

    “We have had the order not to miss out on any information now that we are no longer able to monitor the chancellor’s communication directly,” it quoted the NSA employee as saying.

    […]

    http://www.reuters.com/article/2014/02/23/us-germany-usa-spying-idUSBREA1M0IK20140223?r=t

  4. P J Evans says:

    @JohnT:
    Might not have come from the WH – NSA appears to be running itself any more, without regard to the government it’s supposed to be part of.

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