



Today, we are revealing—for the first time—the Justice Department’s rules for targeting journalists with secret FISA court orders. The documents were obtained as part of a Freedom of Information Act lawsuit brought by Freedom of the Press Foundation and Knight First Amendment Institute at Columbia University.

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.

The FISA court rules below are entirely separate from—and much less stringent—than the rules for obtaining subpoenas, court orders, and warrants against journalists as laid out in the Justice Department’s “media guidelines,” which former Attorney General Eric Holder strengthened in 2015 after several scandals involving surveillance of journalists during the Obama era.

When using the legal authorities named in the “media guidelines,” the Justice Department (DOJ) must go through a fairly stringent multi-part test (e.g. certifying that the information is critical to an investigation, that it can’t be obtained by other means, and that the DOJ exhausted all other avenues before doing so) before targeting a journalist with surveillance. They must also get approval from the Attorney General.

With the FISA court rules, there is no multi-part test that we know of. The DOJ only must follow its regular FISA court procedures (which can be less strict than getting a warrant in a criminal case) and get additional approval from the Attorney General or Assistant Attorney General. FISA court orders are also inherently secret, and targets are almost never informed that they exist.