On Monday, the Freedom of the Press Foundation has revealed documents showing that the United States government are able to secretly spy on journalists. Unbeknownst to the public until now, Foreign Intelligence Surveillance Act (FISA) courts can approve the government surveillance of journalists and secret seizure of information.
It had previously been thought that the Department of Justice restrictions prevented the government from targeting journalists without due cause. The Obama administration faced a scandal in 2015 after it was revealed that it took secretly obtained phone records from the Associated Press and then, named a Fox News reporter as a conspirator in a leak case. In response to public outcry, Attorney General Eric Holder put new guidelines in place. The new rules meant that the Department of Justice had to prove that the information they needed was important for their investigation, could not be obtained by other means, and that other options had been exhausted.
FISA court rules were unaffected by this change and require much less stringent testing. Outside of Attorney General approval, the Department of Justice is able to secretly spy on journalists as if they were regular citizens.
“This is a huge surprise,” noted Victoria Baranetsky, general counsel with the Center for Investigative Reporting, “It makes me wonder, what other rules are out there, and how have these rules been applied? The next step is figuring out how this has been used.” Trevor Timm, Executive Director of the Freedom of the Press Association, expressed concerns over why the FISA rules have been kept secret until now. “The Justice Department updated its ‘media guidelines’ in 2015 with great fanfare… FISA Court orders are exempt from the media guidelines yet apparently these rules existed in secret at least since then.”
Jim Dempsey, former member of the Privacy and Civil Liberties Oversight Board, believes it is positive news that the DOJ requires higher approval from the Attorney General, and claimed that the rules allow the government to keep an eye on foreign interference, “it’s possible today that there are circumstances in which a person who works for a media entity is also an agent of a foreign power. Not every country lives by the rules of journalistic integrity that you might want.”
Knight Institute attorney Ramya Krishnan argued that there is no clear definition of a foreign agent, saying, “think about Wikileaks; the government has said they are an intelligence operation.”
In a time where the U.S. government is increasingly hostile towards the media – Trump calling the media “fake news” and the “enemy of the people” in August – there is no telling how many journalists are currently under government surveillance. Attorney General Jeff Sessions announced in August 2017 that the Justice Department is pursuing three times as many leak investigations as the Obama administration had. The Obama administration publicly oversaw around nine leak-related investigations, more than every previous administration combined, and Trump has encouraged an even stronger stance.
Leaks are not necessarily illegal, and in many cases help the public understand what their government tries to obfuscate. In order for journalists to do their job and to inform the public, regulations must be in place to protect press freedom.
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