On Monday (Sept 17, 2018) the Freedom of the Press Foundation released Department of Justice documents detailing the procedure for monitoring journalists using the secretive Foreign Intelligence Surveillance Court. The documents were recently obtained via Freedom of Information Act lawsuit filed by Freedom of the Press Foundation and Knight First Amendment Institute at Columbia University.
The documents reveal that the DOJ is not required to satisfy “a multi-part test” designed to prove they have exhausted all options before targeting a journalist with surveillance, as is the case for obtaining traditional subpoenas, court orders, and warrants against journalists. Instead, Trevor Timm of the Freedom of the Press Foundation notes, the DOJ only must follow less strict court orders from the Foreign Intelligence Surveillance court. “FISA court orders are also inherently secret, and targets are almost never informed that they exist,” Timm writes in a press release regarding the documents.
The secret courts were originally created under the Foreign Intelligence Surveillance Act of 1978 (FISA) in response to reports produced by the Church Committee in 1975. The Senate committee was tasked with investigating the foreign and domestic surveillance operations by the Central Intelligence Agency (CIA), National Security Agency (NSA) and Federal Bureau of Investigation (FBI) during the 1970s. The Church Committee also released detailed reports on the governments Counter Intelligence Programs (COINTELPRO) that were used against activists and influential voices of opposition during the 1950s and ’60s.
“While civil liberties advocates have long suspected secret FISA court orders may be used (and abused) to conduct surveillance on journalists, the government—to our knowledge—has never acknowledged they have ever even contemplated doing so before the release of these documents today,” writes Timm.
The Intercept also notes that “the rules apply to media entities or journalists who are thought to be agents of a foreign government, or, in some cases, are of interest under the broader standard that they possess foreign intelligence information.”
Hannah Bloch-Wehba, a professor at Drexel University, told The Intercept that “a probable example would be surveillance of reporters who are working for somewhere like RT (Russia Today, a news outlet funded by the Russian government) and as a consequence, anyone who is talking to reporters for RT.” This would mean journalists like Ben Swann, Lee Camp, Jesse Ventura, Abby Martin, James Corbett, Rachel Blevins, the Free Thought Project, and yours truly might be under surveillance for association with RT.
The Freedom of the Press Foundation is asking important questions regarding the release of these documents. Namely, how many times have FISA court orders been used to target journalists and how many are currently under a FISA investigation? The FPF also notes that the FBI should declassify their rules for targeting journalists using the controversial National Security Letters.
NSLs are a tool used by the U.S. government to force telecommunications companies to give customer information without the use of a warrant from a judge. They are supposed to be issued by the FBI to gather information from companies when that information is related to national security investigations. This information can include customer names, addresses, phone and internet records, and banking and credit statements.
The most contentious part of the tool is the use of gag orders. When a credit reporting agency, telecom company, bank, or travel firm receives the letters requesting customer information, they are legally gagged and cannot alert anyone to the government’s invasion of customer privacy.
The Freedom of the Press Foundation says they originally filed their FOIA lawsuit because of the DOJ had already prevented the release of documents relating to the use of NSLs.
The FISA Court is a glaring example of The Deep State. A secret court run by secret judges who interpret the law behind closed doors and who refuse to publicly release their findings or their interpretation. Thus far, the Trump administration has supported the FISA court, specifically the intelligence community’s use of Section 702 of FISA.
The FBI and NSA claim they need section 702 in order to prevent another 9/11 like attack. However, in 2013 whistleblower Edward Snowden revealed that Section 702 also authorizes two Internet surveillance programs known as PRISM and Upstream. PRISM gathers messaging data sent via Google, Facebook, Microsoft, Apple, and other tech companies, while Upstream taps into the so-called backbone of the Internet to gather data on targets.
Section 702 of FISA is only one of many tools at the hands of The Deep State. For one reason or another, the Trump administration continues to support the dangerous, unconstitutional measure. Critics say a lack of transparency has allowed various federal agencies to run mass surveillance programs with no accountability.
In fact, in February 2018, Activist Post reported that the Electronic Frontier Foundation acquired formerly classified court orders which detail how the Foreign Intelligence Surveillance Court violates the privacy of innocent Americans caught in the crossfire of federal surveillance. The documents are the result of Freedom of Information Act requests filed by the EFF as part of an effort to shine light on the inner workings of the secret court. The documents provided to the EFF detail several cases where conversations of people not targeted by federal authorities were swept up in the course of surveillance investigations.
The EFF writes:
These documents raise larger questions about whether the government can meaningfully protect people’s privacy and free expression rights under Section 702 of the Foreign Intelligence Surveillance Act (FISA), which permits officials to engage in warrantless mass surveillance with far less court oversight than is required under the “traditional” FISA warrant process.[…]
Although many of the 13 opinions are heavily redacted — and the government withheld another 26 in full — the readable portions show several instances of the court blocking government efforts to expand its surveillance or ordering the destruction of information obtained improperly as a result of its spying.
Although Donald Trump has been critical of FISA and on Monday ordered declassification of certain documents related to FISA, he has shown support for the continued use of the court as it suits his needs. With the release of these new documents, Trump must be questioned regarding whether or not the Trump administration has used FISA court orders to target journalists with surveillance.
Derrick Broze is an activist, investigative journalist, public speaker, and author based in Houston, Texas. He is the founder of The Conscious Resistance Network and the co-author of The Conscious Resistance trilogy with fellow TFTP writer John Vibes. Broze’s work focuses on surveillance technology, indigenous struggles, and generally uncovering the lies and omissions of the corporate media. This article first appeared at The Free Thought Project.