The FBI’s internal rules for spying on journalists smack of communist China. The FBI can seize the phone records of journalists on the power of a National Security Letter (NSL), which it can issue internally and without any involvement from a judge. It doesn’t have to inform the journalist’s employer. The Intercept acquired an unredacted copy of the FBI’s Domestic Investigations and Operations Guide, which contains the rules applying to journalists. From The Intercept’s story yesterday:
The rules stipulate that obtaining a journalist’s records with a national security letter (or NSL) 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.
The number of NSLs issued by government agencies (mainly the FBI) leapt up in 2001 after the The Patriot Act loosened the requirements for issuing them. As of 2013, the government was issuing 60 NSLs a day, a presidential commission found.
If we learned anything during the FBI’s battle with Apple over obtaining encrypted smartphone data, it’s that the agency and its leadership consider it their mandate to push against the limits of the law to acquire evidence, especially digital evidence—without much regard for the privacy of U.S. citizens, which it sees as the province of adversaries like the courts or Congress. Some members of Congress I’ve spoken with believe the FBI—in the dangerous world we live in now—should take such an aggressive posture, and continue pushing the envelope. May be, but an agency with that sort of internal culture shouldn’t be relied upon to police itself on civil liberties.