More questions than answers from DOJ letter about journalist surveillance

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The Trump administration has made no secret of its animosity toward leaks and the journalists who publish them. Attorney General Jeff Sessions announced last August that his department was pursuing more than three times as many leak investigations as were open at the end of the Obama years, and that he was reviewing the Department of Justice’s policy on obtaining information involving journalists—reportedly to make collecting that information easier. In a recent disclosure to Sen. Ron Wyden, the DOJ does little to quell fears that this crackdown will damage journalists’ ability to protect their sources and shine a torch on government misconduct.  

Related: Lawsuit aims to uncover how government surveils journalists

Wyden wrote to Sessions last October and asked two questions:

1. Has the Justice Department made any changes to its policies and procedures governing investigations of journalists since President Trump’s inauguration?
2. How many times in the past five years did the Justice Department use “subpoenas, search warrants, national security letters, or any other form of legal process authorized by a court” to target journalists in the United States or American journalists abroad?

Around the same time, the Knight First Amendment Institute at Columbia University and the Freedom of the Press Foundation filed a Freedom of Information Act request, also seeking information on the surveillance of journalists. We have since sued to enforce the request, and are in negotiations with the government over the processing and production of documents in response.

Meanwhile Wyden has received a response that, while illuminating in certain respects, is frustratingly incomplete in others.

The response letter—dated March 5, 2018, and published by Buzzfeed News earlier this week—discloses that, while the Justice Department continues to review its policies, “there have been no revisions to the existing policy and procedures.” This suggests that the department still follows the 2015 regulations adopted under former Attorney General Eric Holder, which, while non-binding, offer journalists important protections against subpoenas. However, it says nothing about the future of those protections once the DOJ completes its current review.

In response to Wyden’s request for statistical information, the department identifies two “instances over the past five years in which the Department has used law enforcement tools to obtain communications records, geolocation information, and the contents of communications.” The first dates to 2013, and appears to relate to a leak investigation in which the department subpoenaed more than two months of phone records for Associated Press reporters and editors without notifying the news organization. The second dates to 2014, and relates to the prosecution of Jeffrey Sterling, a former CIA officer, for leaking information to then-New York Times reporter James Risen.

The omission of Ali Watkins’ story is troubling, and raises concerns that other instances of surveillance have been left out of the Justice Department’s response.

Conspicuously missing, however, is any mention of the subpoena used to obtain the email and call records of Times journalist Ali Watkins, the first publicly known instance of a reporter having her records seized in connection with a leak investigation under the Trump administration. In breaking the story last month, the Times reported that Watkins was notified on February 13 that her records had been seized. The Justice Department’s letter to Wyden postdates that notification by almost three weeks, and states that it is responding to “requests for information from January 2012 to the present.” It in no way qualifies its answer by stating that the department has withheld information relating to ongoing investigations. The omission of Watkins’ story is troubling, and raises concerns that other instances of surveillance have been left out of the Justice Department’s response.

One piece of new and significant information in the letter is the Justice Department’s statement that “[t]he Federal Bureau of Investigation does not currently use national security letters to advance media leak investigations.” The use of national security letters, or NSLs, are of particular interest to press freedom advocates because they are an extraordinary search procedure, exempt from the department’s 2015 regulations, that gives the FBI the power to secretly compel the disclosure of customer records held by banks, telephone companies, internet providers, and others.

Once again, though, the department perpetuates uncertainty: It does not say whether it has used NSLs to advance leak investigations in the past, or whether it may do so in the future. And it does not say whether it uses, or has used, NSLs to obtain journalists’ data outside the context of leak investigations.

The Justice Department’s disclosure does, however, bear on the negotiations in our own lawsuit for information about NSLs. The government’s lawyer indicated last month that our request for information about NSLs would be met with a so-called Glomar response: the FBI can neither confirm nor deny even the existence of the information we are seeking. Such Glomar responses—non-answers that transparency advocates believe have been widely abused—have too frequently enabled intelligence officials to keep important information from the public. 

Even before the department’s letter to Wyden, its planned Glomar response was specious. The FBI’s internal rules specifically contemplate issuing NSLs to obtain the records of journalists, or the records of third parties communicating with journalists, and the agency has previously released a redacted version of those rules. In light of that, it is difficult to see how the government could argue that national security harm would result simply from disclosing the number of times those rules had actually been invoked.

In any event, it will be very difficult for the FBI to make such a claim now that it has disclosed information about its use of NSLs in its response to Wyden. Plainly, that information is not sensitive, and the FBI should be willing to release it in the context of our FOIA suit—which will, we hope, begin to provide real answers for journalists who must safeguard confidential sources in order to effectively speak truth to power.

From the archives: When can the FBI use National Security Letters to spy on journalists?

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Ramya Krishnan is a legal fellow at the Knight First Amendment Institute. Prior to joining the Institute, Ramya earned her LL.M. from Columbia Law School. During her studies, she was an intern at the Knight Institute and the ACLU’s Women’s Rights Project. She also worked as a research assistant to Professor Amal Clooney. Ramya obtained her first law degree from the University of Sydney, where she served as an editor of the Sydney Law Review. After graduating, she was a law clerk at the Supreme Court of New South Wales and a lawyer at the Australian Attorney-General’s Department.