More questions than answers from DOJ letter about journalist surveillance

[Commentary] Attorney General Jeff Sessions announced last August that his department was pursuing more than three times as many leak investigations as were open at the end of the Obama years, and that he was reviewing the Department of Justice’s policy on obtaining information involving journalists—reportedly to make collecting that information easier. In a recent disclosure to Sen Ron Wyden (D-OR), the DOJ does little to quell fears that this crackdown will damage journalists’ ability to protect their sources and shine a torch on government misconduct.  

The response letter—dated March 5, 2018, and published earlier the week of July 9—discloses that, while the Justice Department continues to review its policies, “there have been no revisions to the existing policy and procedures.” This suggests that the department still follows the 2015 regulations adopted under former Attorney General Eric Holder, which, while non-binding, offer journalists important protections against subpoenas. However, it says nothing about the future of those protections once the DOJ completes its current review. The DOJ letter also did not say whether it has used National Security Letters (NSLs) to advance leak investigations in the past, or whether it may do so in the future. And it does not say whether it uses, or has used, NSLs to obtain journalists' data outside the context of leak investigations. 

[Ramya Krishnan is a legal fellow at the Knight First Amendment Institute.]