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Court Says FBI Doesn't Have To Hand Over Its Rules For Surveilling Domestic Journalists

A federal judge has sided with the government, finding its investigative techniques are too sensitive to be made public.

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FBI cap hatA couple of years ago, the Freedom of the Press Foundation sued the DOJ over its refusal to release its secret rules governing spying on the nation’s journalists. This was prompted by revelations the FBI had used National Security Letters to obtain information on AP and Fox News journalists. The DOJ then issued new rules on the do’s and don’ts of surveilling journalists, but once again (a) redacted them into uselessness and (b) granted the FBI an NSL exception, undercutting the entire point of the recrafted rules.

The OIG report — in which the Inspector General disputed the DOJ’s extensive redactions — still has yet to be released in a less-redacted form. Sadly, it now appears it will never be any less redacted than the unintelligible mess the DOJ handed over a few years ago. A federal judge has sided with the government, finding its investigative techniques and methods are too sensitive to be handed over to the public, much less journalists it may or may not have surveilled using NSLs. (h/t Trevor Timm, Mike Scarcella)

Underlying everything is the government’s barely-contested assertion that these rules contain information of national security interest. It’s a handy assertion because it means the DOJ doesn’t even have to explain why the redactions it made are relevant to its national security claims. From the opinion [PDF]:

Recognizing the Court’s “limited institutional expertise on intelligence matters,” the Court accords substantial weight to Hardy’s representation that “any greater specificity in the descriptions and justifications . . . could reasonably be expected to jeopardize the national security of the United States.” Hardy Decl. ¶ 46. In the area of national security, “it is conceivable that the mere explanation of why information must be withheld can convey valuable information to a foreign intelligence agency.”

This same argument appears later in the decision when dispensing of the plaintiff’s challenge to yet another FOIA exception deployed by the FBI:

[T]he Court finds Defendant has met its burden and properly withheld documents under Exemption 7(E) for all five categories of documents. Defendant described with particularity that the withheld documents all contained non-public information about the FBI’s investigative techniques and procedures. These pages not only identified NSLs as an investigative technique, but also described information such as the circumstances under which the techniques should be used, how to analyze the information gathered through these techniques, and the current focus of the FBI’s investigations. As in Hamdan, the Court concludes that the declarations, which state that further detail would “reveal[] the very information it seeks to protect,” are sufficient to satisfy Defendant’s burden.

The court’s also uninterested in double-checking the DOJ’s secrecy assertions. As always, the court has the option to review contested documents behind closed doors (and away from plaintiffs) to see if the government’s claims of national security/investigative concerns are valid. The court here declined to exercise this privilege.

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The Court finds that in camera review is unnecessary here as Defendant already provided sufficiently detailed factual information in support of its exemptions in the Hardy Declarations and Vaughn Index.

The FBI is still free to use NSLs to obtain information — including call records — about journalists. The DOJ may have reined in other options, but NSLs have always been the FBI’s go-to form when it’s stymied by the FISA court, magistrate judges, or internal guidelines. Nothing about that will change. As for what’s actually changed at the DOJ as a result of this public outing of journalist surveillance, the public apparently can’t be trusted with that information.

Court Says FBI Doesn’t Have To Hand Over Its Rules For Surveilling Domestic Journalists

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