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 (or NSL) 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.
There is an extra step under the rules if the NSL targets a journalist in order “to identify confidential news media sources.” In that case, the general counsel and the executive assistant director must first consult with the assistant attorney general for the Justice Department’s National Security Division.
But if the NSL is trying to identify a leaker by targeting the records of the potential source, and not the journalist, the Justice Department doesn’t need to be involved.