In 2015, the Freedom of the Press Foundation sued the Department of Justice under the Freedom of Information Act in an attempt to force the DOJ to publish its rules for conducting warrantless spying on journalists in the United States. The DOJ responded that it had supplied all of the documentation the Foundation requested, aside from information that fell under certain FOIA exceptions.
This week, a U.S. District judge in California ruled that the unpublished rules on media surveillance could remain unpublished, ending the Foundation's lawsuit. You can read the opinion in full, below:
Instead of getting standard warrants for surveilling or getting evidence from journalists, the FBI had instead been using National Security Letters. NSLs permit agents to obtain "subscriber information and toll billing records information, or electronic communication transactional records" from third-party communication providers if the information is "relevant to an authorized investigation to protect against international terrorism or clandestine intelligence activities." The Foundation wanted information on how the DOJ and FBI used NSLs when it came to investigations of journalists.
While the DOJ supplied some responsive documents, it admittedly withheld specific information:
Policy Implementation Guide, with instructions for managing and conducting cyber investigations;
The Domestic Investigations and Operations Guide ("DIOG");
Media Guidelines, with instructions for investigating and charging members of
the news media;
An NSL PowerPoint training presentation;
Internal emails regarding the creation and revision of the Policy Implementation Guide, DIOG, and Media Guidelines; and
Office of Information Policy ("OIP") drafts of the Media Guidelines.
The DOJ justified the refusal to produce this material under four exceptions to the FOIA disclosure rules, arguing that information was either classified information, information protected by statute, privileged information, or comprised investigative techniques and strategies that would be too damaging to reveal.
Judge Haywood Gilliam sided with the government, ruling that the FBI conducted an adequate search for the records the Foundation requested, and any material not produced was protected under the claimed FOIA exceptions. So the FBI does not need to disclose how, why, when, or where it spies on U.S.-based journalists. The judge's reasoning is below: