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.

Tweet about this on TwitterShare on Reddit0Share on Facebook0Google+2Email to someone

6 Responses to DOJ Will Continue to Use NSLs to Get Journalist Contacts

Emptywheel Twitterverse
emptywheel @RachelBLevinson What did you name your daughter instead, bc you're right, Sasha does rock. @onekade
2mreplyretweetfavorite
bmaz Clock cannot run out on Loretta Lynch fast enough. https://t.co/hOGgy78dMo
3mreplyretweetfavorite
emptywheel @onekade Alex may be the best mainstream gender neutral name (while acknowledging Chris is even more gender neutraller).
4mreplyretweetfavorite
emptywheel @onekade Jamie and And(ie) as nicknames. Do they need an underlying real name? This child won't need to be baptized after a saint, right?
12mreplyretweetfavorite
emptywheel @JeffLandale People forget that FISC offers the equivalent of letting IC drop a class until finals are due to support grade inflation
15mreplyretweetfavorite
emptywheel @JeffLandale Right. But it was past dry run stage, in that it counted as an app. Usu they get withdrawn before that if they're "rejected."
16mreplyretweetfavorite
emptywheel @onekade Are you having a baby, Kade? Is there something you're not telling us? @TyreJim
18mreplyretweetfavorite
emptywheel @onekade Aidan. It's male in Ireland (says my angry Irish spouse), where it's from, but neutral here. @TyreJim
19mreplyretweetfavorite
emptywheel @JeffLandale Also, while everyone saying "FISC didn't reject any app again" effectively they did, which is unusual, and may have done more
20mreplyretweetfavorite
emptywheel @JeffLandale (On a smaller scale) the 2009 violations.
22mreplyretweetfavorite
emptywheel @JeffLandale In any case, only time we've seen a spike like that is when Tech cos demanded 215 orders instead lf NSLs for ECTRs or...
22mreplyretweetfavorite
emptywheel @JeffLandale FISC is including prospective location collection on targeted FISA orders, so it's possible this is that (eg Stingrays)
23mreplyretweetfavorite
February 2014
S M T W T F S
« Jan   Mar »
 1
2345678
9101112131415
16171819202122
232425262728