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Federal Judge: FBI Can Keep Secret Rules on Warrantless Espionage of Reporters

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A federal judge in San Francisco declined on Monday to force the FBI to reconsider a request to divulge guidelines for spying on journalists without a warrant.

District Judge Haywood Gilliam Jr. ruled that the agency had properly responded to public records requests at the heart of the litigation, under Freedom of Information Act requirements.

The Freedom of the Press Foundation, which filed the lawsuit, had claimed the FBI failed to reference a relevant memo, in response to prior FOIA requests and litigation filed by the group in 2015.

Some of the information sought by the organization was subsequently leaked to and published by The Intercept in June 2016.

Lawyers for the non-profit said a lack of reference to the guidelines was proof the FBI failed to conduct an adequate search for the information, as FOIA mandates. Judge Gilliam, however, disagreed wholeheartedly.

“Even if the Court agreed with Plaintiff that Defendant should have otherwise identified Appendix G, that omission, standing alone, is insufficient to render the FBI’s search inadequate,” Haywood said.

Appendix G refers to the section of an FBI manual published last summer by the Intercept–the bureau’s Domestic Investigation and Operations Guide.

The appendix set out procedures for the issuance to of National Security Letters to reporters. “National Security Letters” are subpoenas sent to communications providers, in conjunction with counterterroism and counter-intelligence investigations.

According to The Intercept report, federal agents must have journalism-related NSLs approved by the FBI General Counsel and the executive assistant director of its National Security Branch, among others.

When attempting to ferret out a confidential source, FBI agents must involve the Department of Justice, unless those efforts involve zero access to a journalist’s personal records.

Judge Gilliam ruled that the FBI properly withheld these guidelines and other information from the Freedom of the Press Foundation. He cited several exemptions shielding government information from public exposure, including carve-outs for deliberative process, national security matters, and attorney-client discussions.

The Freedom of the Press Foundation is currently weighing an appeal, according to a report published Tuesday by Courthouse News.

“This is an extremely disappointing decision,” said Trevor Timm, the organization’s executive director.

“Whether it’s the Obama administration or the Trump administration,” he added, “the government should not be able to keep its rules for spying on journalists without a court order secret.”

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Since 2010, Sam Knight's work has appeared in Truthout, Washington Monthly, Salon, Mondoweiss, Alternet, In These Times, The Reykjavik Grapevine and The Nation. In 2012, he worked as a producer for The Alyona Show on RT. He has written extensively about political movements that emerged in Iceland after the 2008 financial collapse, and is currently working on a book about the subject.

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