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Watchdog Demands Rules on FBI Media Spying

SAN FRANCISCO (CN) - The Department of Justice refuses to reveal its unpublished rules for spying on journalists, and the Freedom of the Press Foundation demands a look at them, in Federal Court.

The foundation sued the Justice Department on Friday under the Freedom of Information Act, seeking expedited production of records on FBI procedures for issuing National Security Letters and exigent letters to investigate members of the media.

"Public disclosure of these protocols is necessary to deter chilling affects on the press and its sources, especially given recent years during which the Obama Administration has increased surveillance of reporters," the foundation's attorney Victoria Baranetsky said.

The Associated Press revealed in 2013 that the Justice Department had secretly obtained months of phone records for at least seven journalists on 20 phone lines while trying to determine which government official leaked information about a CIA operation that allegedly thwarted a terrorist plot.

Soon after, it was revealed that the Justice Department had investigated James Rosen, Fox News's chief Washington correspondent, in connection to a possible leak of classified information by a government contractor.

In that case, Rosen was labeled as a possible "co-conspirator," and investigators pulled his security badge records, phone logs and personal emails.

As a result of the backlash, the Justice Department in July 2013 released guidelines that supposedly bar the government from issuing subpoenas to journalists unless high standards are met.

But the guidelines did not apply to FBI agents using national security letters to get telecom companies, libraries and others to secretly hand over information, including Internet records of U.S. citizens without court oversight.

About 97 percent of national security letters come with gag orders barring the recipients from talking about it.

In 2013, U.S. District Judge Susan Illston found the letters facially unconstitutional and ordered the government to stop issuing them, but she stayed her ruling pending appeal to the Ninth Circuit.

A Justice Department spokesperson told The New York Times that procedures for national security letters are governed by an "extensive oversight regime."

A heavily redacted August 2014 Department of Justice Inspector General report criticized the FBI's handling of a leak investigation, in which it collected a reporter's phone records using national security letters.

A separate Inspector General report found that the FBI had issued hundreds of exigent letters to get telephone records from three major telephone carriers. The letters were not authorized by law, flouted internal FBI policy and violated attorney general guidelines, the report said.

In January, several months after the 2014 report confirmed that the FBI had new procedures for gathering information about media, the Justice Department published another rule amending the media guidelines.

The updated policy did not include any procedures for issuing national security letters or exigent letters to get information about members of the press, the foundation says.

It filed an FOIA request in March, seeking the FBI's unpublished procedures on how it issues national security letters or exigent letters regarding members of the media.

"The DOJ failed to provide adequate response after it acknowledged the need for expedited processing," Baranetsky said.

Nor has the Justice Department met its deadline to reply to the FOIA, the foundation says in the complaint.

It seeks information on the extensive regime that oversees issuance of national security letters, the procedures the FBI must follow before and after issuing a national security letter to obtain records on members of the press, and any changes in FBI policy after the Justice Department reviews.

Expedited disclosure "is in the public interest and '[a] matter of widespread and exceptional media interest in which there exist[s] possible questions about the government's integrity which affect public confidence,'" the foundation says in the complaint.

The Justice Department would not comment on the lawsuit.

Baranetsky and Marcia Hoffman, both of San Francisco, represent the foundation.

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