The Government Can Spy on Journalists Using FISA, Newly Released Documents Show

New documents obtained by The Intercept show that it’s possible for the government to use the Foreign Intelligence Surveillance Act (FISA) to get permission to spy on journalists in the U.S. (though not U.S. citizens). These requests require approval from high-ranking officials in the Justice Department, but the whole process can be conducted secretly.

From The Intercept:

In two 2015 memos for the FBI, the attorney general spells out “procedures for processing Foreign Intelligence Surveillance Act applications targeting known media entities or known members of the media.” The guidelines say the attorney general, the deputy attorney general, or their delegate must sign off before the bureau can bring an application to the secretive panel of judges who approves monitoring under the 1978 act, which governs intelligence-related wiretapping and other surveillance carried out domestically and against U.S. persons abroad.

These documents are some of the first information made public about how FISA can be used to target journalists. The Cold War era act was initially intended to provide some kind of oversight for government surveillance in the wake of Nixon’s abuses. But since the passage of the Patriot Act, which amended it to include groups not backed by foreign governments, it’s become more widely used. FISA has long been attacked by both the left and the right for its potential to violate civil rights, or, conversely, for infringing on the government’s national security powers. In January, Congress renewed some of the most controversial aspects of the bill, including warrantless surveillance, for another six years.

The Intercept describes some of the previous concerns over the act’s provisions as it relates to journalists:

Previous attention had been focused on the use of National Security Letters against members of the press; the letters are administrative orders with which the FBI can obtain certain phone and financial records without a judge’s oversight. FISA court orders can authorize much more invasive searches and collection, including the content of communications, and do so through hearings conducted in secret and outside the sort of adversarial judicial process that allows journalists and other targets of regular criminal warrants to eventually challenge their validity.

These new documents were released as part of a lawsuit brought by two press freedom groups against the Trump administration. The lawsuit sought the government’s rules for how and when the administration can surveil journalists. (Both the FBI and Justice Department declined to comment on the documents to the site.)

“This is a huge surprise,” Victoria Baranetsky, an attorney with the Center for Investigative Reporting, told The Intercept. “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.”

Some experts said the high bar the newly released documents suggest is needed for a court to approve surveilling members of the media is actually a good sign. “[It’s] a recognition that monitoring journalists poses special concerns and requires higher approval. I look on it as a positive, and something that the media should welcome,” Jim Dempsey, a professor at Berkeley Law, told the site.

“They apply to known media, not just U.S. media,” Dempsey said. “Certainly back in the Cold War era, certain Soviet media entities were in essence arms of the Soviet government, and there may have been reasons to target them in traditional spy-versus-spy context. And 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.”

But at a time when scaremongering over left-leaning journalists being “Russian agents” is suddenly all the rage, it’s not exactly comforting to think that the government could potentially use this as a pretext to monitor those journalists.

Hannah Bloch-Wehba, a professor at Drexel University, says this is a concern, not just for those journalists, but for their sources too. “[A] probable example would be surveillance of reporters who are working for somewhere like [Russia Today, the government-funded Russian news source],” she told The Intercept. “And as a consequence, anyone who is talking to reporters for RT. The reporters are probably conscious they are subject to surveillance, but their sources might not be.”

CORRECTION, 8:O8 p.m. ET: A previous version of this article stated that FISA warrants could allow the government to surveil journalists who are American citizens. The Intercept’s original story, however, refers to foreign journalists in the U.S., not American citizens. We have updated the headline and body to reflect this.