Cora Currier

Rules governing the use of national security letters allow the FBI to obtain information about journalists’ calls without going to a judge or informing the targeted news organization. Secret FBI rules allow agents to obtain journalists’ phone records with approval from two internal officials — far less oversight than under normal judicial procedures. The classified rules, obtained by The Intercept and dating from 2013, govern the FBI’s use of national security letters, which allow the bureau to obtain information about journalists’ calls without going to a judge or informing the news organization being targeted. They have previously been released only in heavily redacted form.

Media advocates said the documents show that the FBI imposes few constraints on itself when it bypasses the requirement to go to court and obtain subpoenas or search warrants before accessing journalists’ information. The rules stipulate that obtaining a journalist’s records with a national security letter requires the signoff 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.

Though the Supreme Court has refused New York Times journalist James Risen’s appeal that he should not be made to testify in a government leak prosecution, efforts to pass a federal media shield law are gathering steam.

On June 11, more than 70 media organizations sent a letter to Senate leadership demanding a vote on a law that’s been sitting around since it passed the Judiciary Committee since last September. And in late May, the House approved an amendment proposed by Rep Alan Grayson of Florida that forbids the Justice Department from spending money to force a journalist to testify about a source.

“I think we’re really close, and the Risen situation really highlights the need for the law,” said David Cuillier, president of the Society of Professional Journalists, one of the signatories on the letter to the Senate. “There might be some senators who are still undecided and still on the fence, but I hope that they’ll now realize this is long overdue.”

The Office of the Director of National Intelligence issued new policies requiring that all public writings and remarks -- even by former employees -- be checked beforehand for sensitive information, and circumscribing how employees can talk about classified material that’s already out in the public sphere.

Long-time intelligence reporters say it’s too soon to say whether the directives -- in effect since April -- are specifically causing sources to clam up. But the policies contribute to a climate where government sources are increasingly twitchy about talking with reporters, even on unclassified matters.

[Commentary] The Obama Administration set forth a proposal to reform one part of the National Security Agency’s surveillance program: the indiscriminate collection of American phone records.

Under the President’s proposal, the government would no longer collect call data in bulk but would be allowed to ask for it from phone companies with court approval, and only for numbers linked to terrorism.

But the White House proposal leaves plenty of room for reporters’ information to be caught up in the NSA’s -- albeit smaller -- dragnet: The government would still be allowed to collect data for numbers “two hops,” or degrees of separation, from the targeted number, down from three. And once the government has that data, there are few restrictions on what they can do with it. In other words, the proposed reforms don’t appear to do anything to address journalists’ concerns about this administration’s crackdown on national security leaks.

“Journalists are at risk if they communicate by phone with potential NSA targets -- or even if they simply talk with others who happen to speak with those targets,” said Patrick Toomey, an attorney with the American Civil Liberties Union’s National Security Project.