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Lawsuit Aims To Shed Light On Trump Administration’s Surveillance Of Journalists

The Justice Department has twenty-seven ongoing leak investigations, according to Attorney General Jeff Sessions. That is a staggering number, and now, the Knight First Amendment Institute and Freedom of The Press Foundation are suing for records on how those investigations may infringe upon the First Amendment rights of journalists.

In a filing submitted to the United States District Court of the Southern District of New York, the two organizations seek “the immediate release of agency records concerning the restrictions imposed by statute, regulation, or the First Amendment on government surveillance targeting members of the news media,” as well as those regulations or laws that implicate “freedoms of speech, association, or the press.”

The two organizations requested records from the Justice Department, National Security Agency, Office of the Director of National Intelligence, CIA, and other agencies in October but received only two documents in response.

Particularly, the Knight Institute and Freedom of the Press Foundation would like records on the Justice Department’s “Media Guidelines” and the media subpoena policies Sessions pledged to review.

“The apparent hostility toward the press from senior government officials combined with increasing government surveillance create a dangerous environment for reporters and whistleblowers,” Knight Institute Staff Attorney Carrie DeCell stated. “The public has a right to know if the limits on surveillance of journalists are sufficient to ensure a free press.”

The two organizations would like the court to order agencies to thoroughly search for records and process and release responsive records immediately. They also would like the court to order disclosure of any “wrongfully withheld records.”

“Recent reports of government investigations into journalists, political dissenters, and political protesters call into question the adequacy of existing limitations on the government’s surveillance authority to protect First Amendment rights,” the complaint states [PDF]. “For example, earlier this year the DOJ demanded that the web host for a website called DisruptJ20.org, which organized protests on the day of President Trump’s inauguration, turn over data encompassing 1.3 million IP addresses and other information associated with the thousands of individuals who had visited the website.”

“The DOJ narrowed its demand only after public condemnation on First Amendment grounds. “On August 4, Sessions suggested the Justice Department received “nearly as many criminal referrals involving unauthorized disclosures” as were “received in the previous three years combined.”

He mentioned a new “counterintelligence unit” was created to manage cases and that the Justice Department is also reviewing policies that affect media subpoenas.

Sessions suggested media should be respected but that “respect is not unlimited. [The media] cannot place lives at risk with impunity.”

Dan Coats, who is the director of national intelligence, joined Sessions to publicly condemn the “culture of leaking.”

“If you improperly disclose classified information, we will find you. We will investigate you. We will prosecute you to the fullest extent of the law, and you will not be happy with the result,” Coats declared.

Yet, few specific examples of “dangerous” leaks were given in statements filled with chest-thumping banalities that are all too common when it comes to government pledges to hunt down leakers and bring them to justice.

When Sessions testified before the House Judiciary Committee on November 14, he asserted that leaks had reached “epidemic proportions,” and the Justice Department would get to the bottom of these leaks.

Democratic Representative Jamie Raskin asked Sessions, “Will you commit not to prosecute investigative journalists for maintaining the confidentiality of their professional sources?”

“I will commit to respecting the role of the press and conducting my office in a way that respects that and the rules in the Department of Justice,” Sessions replied. “We have not had a conflict in my term in my office yet with the press, but they’re some things—[The] press seems to think they have an absolute right. They do not have an absolute right.”

Sessions was referring to the publishing of previously classified information or what officials deem to be “sensitive national security information.”

In addition to leak investigations, the Knight Institute and Freedom of the Press Foundation are concerned about how the FBI uses “national security letters” (NSLs) and the lack of limits or regulations to protect news media. NSLs are used by federal authorities to obtain records from companies about their customers and apparently exempt from the Justice Department’s “Media Guidelines.”

“The fact that the Justice Department has completely exempted national security letters from the ‘Media Guidelines’ and can target journalists with them in complete secrecy is an affront to press freedom,” declared Trevor Timm, executive director of Freedom of the Press Foundation. “There’s absolutely no reason why these secret rules should not be public.”

Faced with leaks about the investigation into the role of officials from President Donald Trump’s campaign in alleged Russian interference in the 2016 election, Trump’s administration has turned to leak investigations to try and maintain legitimacy in the eyes of the public.

President Barack Obama’s administration prosecuted a record number of individuals for leaks. But it appears the Trump administration may be even more aggressive than the Obama administration. The most high-profile case currently involves Reality Winner, a former NSA contractor who allegedly leaked a document to The Intercept on alleged Russian hacking to interfere in the election.

The efforts to clamp down on leaks are virtually guaranteed to make the work environment in government agencies more toxic. It will likely breed distrust and suspicion among personnel. That will likely fuel more dysfunction, and in turn, lead to more leaks.

Kevin Gosztola

Kevin Gosztola

Kevin Gosztola is managing editor of Shadowproof. He also produces and co-hosts the weekly podcast, "Unauthorized Disclosure."