{"id":5122,"date":"2017-03-28T11:27:57","date_gmt":"2017-03-28T15:27:57","guid":{"rendered":"http:\/\/ncjolt.org\/?p=5122"},"modified":"2020-06-04T20:52:54","modified_gmt":"2020-06-04T20:52:54","slug":"fbi-doesnt-release-rules-secretly-collecting-information-journalists","status":"publish","type":"post","link":"https:\/\/journals.law.unc.edu\/ncjolt\/blogs\/fbi-doesnt-release-rules-secretly-collecting-information-journalists\/","title":{"rendered":"FBI Doesn\u2019t Have to Release Its Rules for Secretly Collecting Information About Journalists"},"content":{"rendered":"

A district court judge in the Northern District of California recently sided with the Department of Justice<\/a> in a case against the Freedom of the Press Foundation, who sued the DOJ over its refusal to disclose FBI procedures for issuing national security letters (NSLs). In short, NSLs are used to secretly collect information about people. In its ruling, the court stressed it would not compel disclosure because it could compromise national security. It stated<\/a> the information was too sensitive<\/a> and could be used by criminals to evade detection, or convey valuable information to a foreign intelligence agency. The court was satisfied with the DOJ\u2019s response to FPF\u2019s Freedom of Information Act request, writing:<\/p>\n

Defendant described with particularity that the withheld documents all contained non-public information about the FBI\u2019s 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\u2019s investigations.<\/em><\/p><\/blockquote>\n

NSLs are issued by the FBI, act like an administrative subpoena, and are used as an investigative tool in the name of national security. They have been controversial for a while, especially since passage of the Patriot Act, one of the four federal statutes that grant NSL authority. They allow the FBI to demand that companies (credit reporting agencies, telecommunications providers, financial institutions, travel agencies) turn over information about their customers, and prevents those companies from even letting those customers know that they\u2019ve sent their information to the FBI. Since the entire process is so secretive and used at the sole discretion of the FBI without any judicial oversight, NSLs can readily be abused.
\nIn June 2016, leaked documents<\/a> revealed the FBI was using NSLs to collect information about journalists\u2019 phone records, which caused a scandal for the DOJ. Specifically, the DOJ tried to find out the source of a CIA leak that ruined a terrorism operation in Yemen by collecting two months of phone records. As a result, the DOJ released new guidelines about issuing subpoenas to journalists in order to clean up the PR mess, but didn\u2019t actually apply the new rules to NSLs. Essentially, the new rules with the NSL exception made the new rules more or less pointless. The leaked documents revealed some of the secret rules the FBI follow when issuing NSLs, and according to the executive director of the Freedom of the Press Foundation, the rules were \u201cincredibly weak and almost nonexistent.\u201d By the director\u2019s account, an FBI agent can be granted permission to issue an NSL after demonstrating its \u201crelevance\u201d to a national security investigation, and getting a couple signatures, including one from the FBI general counsel.
\nNSLs can only collect certain kinds of Electronic Communication Transactional Records (ECTRs) under the act, namely, \u201cthe name, address, length of service, and local and long distance toll billing records of a person or entity.\u201d However, pending legislation<\/a> could expand the NSL act by broadening the category of ECTRs to include a person\u2019s internet browsing history and email metadata, which is exactly as frightening as it sounds. Browsing data and email metadata could reveal a person\u2019s most private information, including medical conditions, political affiliations, and sexual orientations. As of December 2016, the bill was introduced and passed by the House Intelligence Committee, and has been received in the Senate.<\/p>\n","protected":false},"excerpt":{"rendered":"

A district court judge in the Northern District of California recently sided with the Department of Justice in a case against the Freedom of the Press Foundation, who sued the DOJ over its refusal to disclose FBI procedures for issuing national security letters (NSLs). In short, NSLs are used to secretly collect information about people. …<\/a><\/p>\n","protected":false},"author":1,"featured_media":5142,"comment_status":"closed","ping_status":"closed","sticky":false,"template":"","format":"standard","meta":[],"categories":[51],"tags":[],"_links":{"self":[{"href":"https:\/\/journals.law.unc.edu\/ncjolt\/wp-json\/wp\/v2\/posts\/5122"}],"collection":[{"href":"https:\/\/journals.law.unc.edu\/ncjolt\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/journals.law.unc.edu\/ncjolt\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/journals.law.unc.edu\/ncjolt\/wp-json\/wp\/v2\/users\/1"}],"replies":[{"embeddable":true,"href":"https:\/\/journals.law.unc.edu\/ncjolt\/wp-json\/wp\/v2\/comments?post=5122"}],"version-history":[{"count":1,"href":"https:\/\/journals.law.unc.edu\/ncjolt\/wp-json\/wp\/v2\/posts\/5122\/revisions"}],"predecessor-version":[{"id":7080,"href":"https:\/\/journals.law.unc.edu\/ncjolt\/wp-json\/wp\/v2\/posts\/5122\/revisions\/7080"}],"wp:featuredmedia":[{"embeddable":true,"href":"https:\/\/journals.law.unc.edu\/ncjolt\/wp-json\/wp\/v2\/media\/5142"}],"wp:attachment":[{"href":"https:\/\/journals.law.unc.edu\/ncjolt\/wp-json\/wp\/v2\/media?parent=5122"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/journals.law.unc.edu\/ncjolt\/wp-json\/wp\/v2\/categories?post=5122"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/journals.law.unc.edu\/ncjolt\/wp-json\/wp\/v2\/tags?post=5122"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}