In July 2015, Freedom of the Press Foundation sued the Justice Department (DOJ) over the agency’s secret rules governing how the FBI can target members of the media with due process-free National Security Letters, and we have just received documents back in the ongoing lawsuit.

These secret rules matter because the DOJ recently released an updated version of their “media guidelines” after widespread public criticism stemming from the agency's surveillance of Associated Press and Fox News journalists in 2013. The media guidelines set a very high bar for when the DOJ and FBI could conduct surveillance on a journalist, and were portrayed at the time as a huge step forward for the rights of reporters.

The only problem is that—buried in the fine print and ignored by almost everyone at the time—the new guidelines do not apply to national security surveillance tools. The DOJ allows the FBI to completely sidestep its own media guidelines and issue National Security Letters (possibly as well as FISA court orders) instead of subpoenas or warrants—entirely in secret. Perhaps worse, they consider the rules for when they can do this to be classified.

Given that virtually every federal leak investigation involves national security, this could potentially allow investigators to circumvent the media guidelines whenever they wish.

After we sued, a lawyer at the Reporters Committee for Freedom of the Press found a redacted reference to these secret rules buried in an annex of the 2011 FBI Domestic Investigations and Operations Guide (DIOG), which as far as we can tell is the last version of that document the FBI has made publicly available. You can see here that if the FBI wants to issue an NSL targeting a reporter in a leak case, they follow another set of rules rather than the the DOJ media guidelines, which do not mention NSLs at all: