The US Gov't Can Legally Spy on Journalists. It Isn't Clear What the Rules Are.

Former Attorney General Eric Holder approved rules allowing the FBI to spy on reporters, a pair of recently released memos from 2015 has revealed.

According to The Intercept, Holder wrote that the government may use the Foreign Intelligence Surveillance Act to monitor journalists if top Justice Department officials and the FISA court approve it.

The memos stipulated that the only journalists subject to surveillance are those who authorities believe are acting as foreign-government agents or possessing foreign-intelligence information. Free-press activists are concerned that the guidelines could apply to any reporter who covers foreign policy.

“This is a huge surprise,” Victoria Baranetsky of the Center for Investigative Reporting said after the Justice Department gave the memos to the Freedom of the Press Foundation and the Knight First Amendment Institute, which had filed suit under the Freedom of Information Act to obtain the documents. Baranetsky continued: “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.”

Berkeley Law School professor Jim Dempsey downplayed the possible chilling effect on First Amendment press freedoms. He argued that the rules were “a recognition that monitoring journalists poses special concerns and requires higher approval.”

Dempsey added: “I look on it as a positive, and something that the media should welcome. (The rules) apply to known media, not just U.S. media. 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.”

However, the Knight Institute's Ramya Krishnan warned that “there’s a lack of clarity on the circumstances when the government might consider a journalist an agent of a foreign power.” The attorney noted that the government has used its spying authority to go after WikiLeaks.

Hannah Bloch-Wehba, a Drexel University professor, suggested that the rules could allow the surveillance of journalists at RT, a Russian government television network. She said that “as a consequence, anyone who is talking to reporters for RT” may be monitored.

The rules do not require the Justice Department to notify reporters that they are under investigation. The guidelines also “do not say how to handle the information that is gathered, or how to mitigate the risk of exposing journalists’ sources and sensitive information unrelated to an investigation,” The Intercept reported.

“Journalists, merely by being contacted by a FISA , might be subject to monitoring,” Krishnan said. “These guidelines, as far as we can tell, don’t contemplate that situation or add any additional protections.”

President Trump, during his campaign and since taking office, has regularly lashed out at the news media. He accuses journalists of fabricating “fake news” when they report stories that are critical of his administration, and calls them the “enemy of the people.”

Attorney General Jeff Sessions also is outspoken in his denunciation of the press. News outlets and their advocates are worried that the White House and Justice Department are exploiting the surveillance rules to smear reporters.

Trevor Timm, who heads the Freedom of the Press Foundation, told Common Dreams that Sessions “has already tripled the amount of leak investigations since the Obama era, (when they were already at an all time high).”

Sessions has taken advantage of the Espionage Act to file charges in three cases involving people handing over sensitive government information to the media. In one of the instances, the FBI seized email and phone records from New York Times reporter Ali Watkins.

Bloch-Wehba said such cases raise a number of issues. “One concern would be evidence laundering. They could learn something about a journalists’ source, and then they go back and use ordinary methods to get the same information,” she told The Intercept.

Mother Jones magazine, after interviewing federal law-enforcement and national-security officials, concluded that “the targeting of journalists has steadily intensified in the Trump era, from organized campaigns of personal harassment to bomb threats and vows of assault, rape and mass shootings.” Two of the publication's sources said there have been threats against reporters “directly channeling the president’s rhetoric.”

Last month, a man allegedly threatened to travel from California to the offices of the Boston Globe to murder the newspaper's employees. He appeared to be reacting to the Globe's condemnation of Trump's war on the media. “You’re the enemy of the people, and we’re going to kill every fucking one of you,” the man declared in a phone call to the newspaper, according to the FBI. Agents said they discovered 20 guns, including a semi-automatic rifle, in the Californian's home.

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