How foreign intelligence surveillance law applies to the news media

November 9, 2018

By Gabe Rottman and Linda Moon

In September, the Intercept published a story titled, "Government Can Spy on Journalists in the U.S. Using Invasive Foreign Intelligence Process." The article detailed two Justice Department memoranda that were released as part of the ongoing Freedom of Information Act lawsuit brought by the Freedom of the Press Foundation and the Knight First Amendment Institute at Columbia University.

These memoranda describe the DOJ and FBI’s procedures for targeting journalists with foreign intelligence investigative tools, which operate under a separate legal framework than the procedures used in criminal investigations. Below, the Reporters Committee answers questions about the Foreign Intelligence Surveillance Act, known as FISA, and what the DOJ memos tell us about how FISA might be used against members of the news media.

By way of preview, the memoranda confirm that the Justice Department has special procedures for using FISA against members of the news media. They require attorney general approval for most FISA applications for physical or electronic surveillance, the collection of metadata (data about data, such as who authored an email), or to compel the production of various types of records held by third parties.

The memoranda do not provide any other color on how FISA is being used against members of the news media. With respect to physical or electronic search warrants, prosecutors still have to establish probable cause that the target is a foreign power or agent of a foreign power, which, unless the Justice Department and the FISA court are seriously misconstruing or misusing the law, should be an absolute check on the use of FISA to collect communications content from domestic news media organizations in the United States unless they are fronting for a foreign state.

As is the case for any U.S. person or company, the collection of metadata or non-content records may be authorized under a lower evidentiary standard (relevance to a foreign intelligence investigation), but the memoranda do not suggest that such tools are being used more expansively or with more frequency against the news media than already anticipated under the existing state of the law.

The memoranda do not address the use of Section 702 of FISA, which authorizes the National Security Agency to target non-U.S. persons overseas for the collection of communications content without individualized FISA court orders.

What is FISA and how does it work?

Following Watergate, several investigative committees in Congress, including the Church and Pike committees in the Senate and House, respectively, revealed significant domestic surveillance abuses by the intelligence agencies and military from the 1950s through the 1970s. Fearful that the courts would eventually impose a Fourth Amendment warrant requirement on foreign intelligence gathering in the United States, until then an unsettled question, the Ford and Carter administrations broke with past presidencies and supported legislation that would legally authorize domestic surveillance by the executive branch in foreign intelligence matters, but with certain checks against abuse.

In 1978, Congress passed such a law when it enacted FISA, which authorized intelligence and counter-intelligence investigators in the United States to go to a new Foreign Intelligence Surveillance Court, often called the "FISC" or FISA court, to secure a warrant permitting electronic surveillance for foreign intelligence purposes.

FISA has since been amended to authorize physical searches (in the 1993 intelligence authorization bill); "pen register/trap and trace" orders, which reveal who communicated with whom and when using electronic means (but not communications content) (added in 1998); and court orders for third party records (in the current statute, any "tangible thing"), commonly called the "business records" provision, though it sweeps more broadly (e.g., the business records provision was used as the legal basis for a National Security Agency initiative to collect all U.S. telephone records, a program that Edward Snowden revealed in 2013) (added in 1998).

The latter two were amended by the USA Patriot Act of 2001 to remove requirements that the government certify that there is some evidentiary basis to believe that the target of the surveillance had a connection to a foreign power. The Patriot Act lowered the standard under both provisions, requiring only, in the case of U.S. persons, that the information sought be "relevant" to a clandestine intelligence or international terrorism investigation.

In 2008, FISA was amended again to permit the government to intercept or compel the disclosure of communications content from non-U.S. persons who are reasonably believed to be overseas. That law arose out of revelations in a 2005 New York Times story that the NSA had engaged in warrantless wiretapping following 9/11, and the 2008 enactment was meant to legalize the practice.

This new provision, commonly referred to as Section 702 after the new section the law added to FISA, allows the government to acquire U.S. person communications if they are on the other end of the communication, often called "incidental" collection (though the amount of “incidental” content collected is sizeable). The older provisions of FISA are sometimes called "traditional FISA" to distinguish them from Section 702. We do so below.

The actual FISA court is composed of 11 federal judges who are appointed by the chief justice of the Supreme Court, but only one judge sits on the court at a time. The court’s physical location is in a secure federal facility in Washington, D.C., but it can approve FISA warrants for searches and surveillance anywhere in the United States. The FISA court’s decisions are reviewed by a specialized appellate court, the FISA Court of Review, or “FISCR.” With limited exceptions, only the government appears before the FISA court and the FISCR.

How is this process different from a regular criminal investigation?

With respect to a traditional law enforcement warrant, the criminal process requires that there be some evidentiary basis for finding probable cause that a crime may have been, is being, or is about to be committed. By contrast, FISA warrants (for physical or electronic searches) are issued if the judge in the FISA court is satisfied that the government has probable cause that the target is a "foreign power" or an "agent of foreign power" (which may include non-state groups such as international terrorist organizations or factions vying for power in a foreign country). Furthermore, the purpose of a FISA warrant is not to gather evidence of criminal activity. Rather, applicants for FISA surveillance or physical searches must certify that the information sought is "foreign intelligence information," a much broader universe of information that includes material that "relates" to U.S. foreign affairs.

The other investigative tools authorized under FISA—such as pen register/trap-and-trace orders and court orders for "tangible things"—likewise require a connection to foreign intelligence gathering or counter-intelligence, but permit a court to issue an order when the government certifies that the records sought are "relevant" to a clandestine intelligence or international terrorism investigation. (With respect to non-U.S. persons, orders may issue when the government certifies that the records sought are likely to contain foreign intelligence information.)

This characteristic—a connection to foreign intelligence gathering, counter-intelligence, or countering international terrorism—pervades FISA. In plain English, FISA permits the government to search, surveil, and monitor people in the United State not to stop or punish crime, but to spy or hunt spies who are agents of foreign powers.

Are journalists in the United States in danger of being targeted by FISA warrants?

No one, including the news media, is exempt from FISA’s investigative tools. This means journalists can be targeted directly by traditional FISA warrants if the government can establish probable cause that the reporter or news outlet is a foreign power or agent of a foreign power. That limitation is serious one, however, and, at least with respect to U.S. news organizations, physical or electronic surveillance under traditional FISA would be highly implausible (unless, again, the Department of Justice and the FISA court are misreading the law or the news outlet is a sham front for a foreign power).

The possibility that FISA tools could be used directly against a news organization is greater with respect to FISA pen register/trap-and-trace and business records orders, as the government need only establish relevance to a FISA investigation, not any connection between the outlet and a foreign power, in order to secure a FISA court order. These tools, however, do not permit the collection of communications content. Also, note again that, under the Justice Department memoranda, investigators still need to get attorney general approval to seek a court order under these provisions.

Additionally, if reporters happen to be in communication with the target of traditional FISA surveillance warrants, or pen register/trap and trace and business records court orders, their communications content or records may be collected and used by the government in FISA investigations.

Finally, reporters’ communications content can also be collected "incidentally" under Section 702 if they are in contact with the overseas target of 702 surveillance. And under the statute, the FBI is permitted to search communications content collected under Section 702 using U.S. person “identifiers” (e.g., any U.S. person’s name or email address) to develop ordinary criminal leads in non-national security cases. We are unaware of any limitation on the use of the "backdoor search loophole," as this FBI search process is often called, with respect to journalists.

Has the government ever used a FISA warrant against a member of the news media in the United States who is suspected of being an agent of a foreign power?

Because FISA applications, warrants, and court orders are secret, we don’t know whether or how often the government has used FISA against journalists. That said, unless prosecutors are severely misusing their authority under FISA, and the FISA court is complicit in this overreaching, mainline American news organizations do not need to hit the panic button. FISA may sweep in foreign financed or controlled outlets—and that can be concerning—but the memos do not imply that FISA is being abused to target U.S. media.

There are four caveats here.

One, as noted above, the news media may be in contact with the targets of "traditional" FISA surveillance and those communications may be collected as part of that surveillance. That collection would be subject to “minimization” procedures that limit the acquisition, retention, and dissemination of information about U.S. persons collected during the FISA surveillance. However, if the identity of the member of the news media is necessary to understand the foreign intelligence information gathered by the surveillance, or otherwise qualifies under the exemptions in the definition of minimization, such as if the U.S. person information indicates criminal activity, minimization requirements would not attach.

Two, non-warrant “traditional” FISA tools, such as the business records provision and the pen register/trap-and-trace statute, permit the collection of information (but not the content of communications) that is merely “relevant” to an ongoing FISA investigation, meaning both can sweep in a significant amount of “metadata” (data about data, such a phone log) pertaining to journalists.

Three, Section 702 involves a separate collection process from the "traditional" FISA powers detailed above. Section 702 authorizes the interception of communications content so long as the target of the surveillance is a non-U.S. person who is reasonably believed to be overseas. Section 702 does not involve individual warrants or court orders for each collection. Rather, the attorney general and director of national intelligence submit a certification to the FISA court that lays out targeting and minimization procedures. If approved, that certification authorizes multiple surveillances and the NSA picks the individual targets. Again, 702 surveillance involves the interception of communications content.

If journalists are in contact with those targets, their communications would be collected (so-called “incidental” collection). The term “incidental” is often criticized as misleading, in that it may suggest that such collection is minimal or accidental. As the Privacy and Civil Liberties Board said in a 2014 report, incidental collection is not "accidental or inadvertent, but rather is an anticipated collateral result of monitoring an overseas target."

Additionally, as noted above, the FBI can query Section 702 collected content and metadata for ordinary criminal purposes under the "backdoor search loophole." We are unaware of any limitation on that authority specific to members of the news media.

Four, U.S. news media organizations often employ non-U.S. persons (that is, individuals who are neither citizens nor permanent residents). These employees might be based in the United States or overseas. If overseas, non-U.S. persons can be directly targeted under Section 702 or under broader intelligence authorities if the actual interception of the communications is wholly foreign. Furthermore, if the person is in the United States, he or she could be subject to incidental content collection under Section 702.

With respect to traditional FISA, non-U.S. persons also receive less protection than U.S. persons, even when they are located in the United States. For instance, for the FISA court to issue a warrant, the government needs to establish probable cause that the U.S. person is a foreign power or "agent of a foreign power," and must show some indication of a violation of U.S. criminal law. The same is not true of a non-U.S. person.

What do the new DOJ memos reveal?

The memos show that FISA applications for probable cause FISA warrants, pen register/trap-and-trace orders, and "tangible things" demands must be approved by the attorney general or deputy attorney general prior to submission to the FISA court. Some commentators have suggested that this heightened oversight may be a positive development.

Also, there is independent value in knowing the existence of these kinds of documents. It is important for the public to know what rules exist and what they require. For example, the DOJ memos show that the government has a policy, and therefore must believe, that it is appropriate to use FISA against journalists when investigators can meet the relevant evidentiary standard depending on the tool used. Most legal experts always believed that to be the case, but these memoranda confirm it.

Do the newly released documents say anything about collection pursuant to Section 702?

They do not. They reference Sections 703 and 704 of FISA, also added as part of the 2008 amendments, which involve the targeting of U.S. persons for overseas surveillance, but not Section 702. Given that Section 702 surveillance does not involve individual court approval for each target, this makes sense. It also means, as far as we know, that there is no policy governing the collection of news media communications under Section 702.

How is a FISA warrant or court order different from a national security letter?

National security letters are investigative tools that permit the FBI to compel the production of certain categories of non-content records (for instance, telecommunications or financial records) without first going to a judge. Similar to FISA warrants, national security letters are not covered by the Justice Department’s "News Media Guidelines," which provide special protections, including notice to the target in most cases and attorney general approval, when the FBI issues subpoenas, warrants, or other legal process to members of the news media. NSLs are issued to a third party—for instance, an email provider—and are almost always accompanied by a gag order, meaning the target would not be aware that her records have been seized.

Because NSLs are secret, and are not reviewed by a court before issuance, we do not know how the government is using them against the news media. The Reporters Committee has advocated (see the bottom of page 3 here) for their inclusion in the News Media Guidelines and specifically suggested (see page 4 here) that they be subject to the notice, heightened review, and approval process required by the guidelines. The DOJ, however, declined to adopt this change when it last revised the guidelines (see page 1 here). (These revisions, finalized in 2014 and 2015, were the result of concerted advocacy by the press freedom community, including specific recommendations offered by a "News Media Dialogue Group" comprised of major news media organizations and coordinated by the Reporters Committee). The DOJ’s position is that FISA warrants and national security letters are national security tools, not law enforcement tools, and therefore do not belong in the guidelines.

Finally, while we know very little about how NSLs are used against the press in individual cases, in 2016, the Intercept released what it asserted is a classified appendix to a set of FBI rules that explicitly permit the use of NSLs to identify reporters’ sources. If these rules are genuine, they revealed that, to expressly use an NSL to identify a source, the FBI need only secure the approval of the head of the FBI’s national security unit, its general counsel, and the lead national security lawyer at the Justice Department—not the attorney general, as would be required for a subpoena in the criminal context. That said, the review requirement for a news media NSL is heightened relative to a normal NSL, which can be approved by an FBI special-agent-in-charge at any FBI field office.