Two media organizations planned to sue the Trump administration on Wednesday for details of government policies on surveillance of journalists, which remain hidden despite the groups' public records requests.
The Knight First Amendment Institute at Columbia University and the Freedom of the Press Foundation said in a draft complaint, shared with The Fix in advance of its filing in federal court in New York, that they want to know how government agencies decide when to force third parties, such as phone companies, to turn over reporters' communication records on national-security grounds.
The groups also want to know how the Justice Department determines when it is appropriate to subpoena journalists to reveal confidential sources. Attorney General Jeff Sessions said on Aug. 4 that as part of an effort to crack down on leaks to the media, his department “is reviewing policies affecting media subpoenas.” Sessions has not said in the months since then how the guidelines might have changed.
The lawsuit follows unfulfilled public records requests to the Justice Department, CIA, NSA and Office of the Director of National Intelligence. All four agencies are named in the suit.
“The public has a right to know if there are sufficient limits on surveillance of journalists to ensure a free press,” said Carrie DeCell, an attorney for the Knight Institute.
For the Freedom of the Press Foundation, the case represents a hope for better luck in a new venue, after a similar suit filed in 2015 in California was dismissed eight months ago. In that case, Obama's Justice Department provided heavily redacted documents in response to a public records request, leaving unclear the rules that govern the FBI's ability to obtain reporters' communication records.
A federal judge in Oakland ruled that the Justice Department's redactions were appropriate, in part because guidance that department lawyers provide to FBI agents is protected by attorney-client privilege.
We do have some idea of how the FBI used to make decisions about surveilling journalists. Last year, the Intercept reported on leaked documents from 2013. Here's an excerpt from Cora Currier's report:
The rules stipulate that obtaining a journalist’s records with a national security letter requires the sign-off of the FBI’s general counsel and the executive assistant director of the bureau’s National Security Branch, in addition to the regular chain of approval. Generally speaking, there are a variety of FBI officials, including the agents in charge of field offices, who can sign off that an NSL is “relevant” to a national security investigation.
There is an extra step under the rules if the NSL targets a journalist in order “to identify confidential news media sources.” In that case, the general counsel and the executive assistant director must first consult with the assistant attorney general for the Justice Department’s National Security Division.
Those rules are four years old — and from a previous administration. With a new lawsuit, the Knight Institute and the Freedom of the Press Foundation hope to learn the Trump administration's policies, but the recent ruling in California suggests an uphill battle.