De Nederlandse politie maakt de afgelopen jaren steeds vaker gebruik van spyware van commerciële bedrijven om laptops, computers, smartphones en andere gegevensdragers van verdachten binnen te dringen. Volgens de wet mag de politie alleen gebruik maken van haar hackbevoegdheid bij verdenkingen van terrorisme en ernstige criminaliteit. Door middel van spyware verkregen gegevens worden nauwelijks tot niet gebruikt als bewijs bij rechtszaken. Het lijkt erop dat de politie spyware tools gebruikt voor inlichtingenoperaties, inkijkoperaties en andere opsporingsdoelen.

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Commerciële spyware bedrijven leveren ook aan repressieve regimes die het inzetten tegen oppositieleden, activisten en journalisten.  Volgens de overheid koopt Nederland geen spyware van bedrijven die ook leveren aan dubieuze regimes en vindt er een screening van bedrijven plaats. In de praktijk stelt deze screening echter niets voor. De politie vertrouwt volledig op verklaringen van bedrijven dat zij niet leveren aan dubieuze regimes, maar doet geen eigen onderzoek.

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De Nederlandse politie maakt de afgelopen jaren steeds vaker gebruik van spyware van commerciële bedrijven om laptops, computers, smartphones en andere gegevensdragers van verdachten binnen te dringen. Volgens de wet mag de politie alleen gebruik maken van haar hackbevoegdheid bij verdenkingen van terrorisme en ernstige criminaliteit. Door middel van spyware verkregen gegevens worden echter nauwelijks tot niet gebruikt als bewijs bij rechtszaken.

Volgens de overheid vindt een screening van de leveranciers van spyware plaats. In de praktijk is van een screening echter geen sprake. De politie vertrouwt volledig op de verklaringen van bedrijven dat zij niet leveren aan dubieuze regimes, maar doet geen eigen onderzoek. Producenten van spyware leveren ook aan repressieve regimes waar spyware wordt ingezet tegen journalisten, mensenrechtenactivisten en oppositieleden. Ook bedrijven waarvan Nederland spyware heeft afgenomen, zoals Gamma Group en de NSO Group.

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In dit onderzoek borduurt Buro Jansen & Janssen voort op eerdere onderzoeken van het Buro naar de cybersurveillance industrie en relatie tussen de Nederlandse politie en leveranciers van spyware. Er is gebruik gemaakt van openbare bronnen, Woo-verzoeken en rapporten van de Inspectie Justitie en Veiligheid.

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Het Duitse bedrijf DigiTask was een van de eerste bedrijven die software ontwikkelde om computers en telefoons te hacken en te doorzoeken. De Duitse overheid gebruikte sinds 2007 de spyware van DigiTask. Het bedrijf leverde haar spyware ook aan Nederland.

In 2011 werd de spyware onderzocht door het hackerscollectief CCC en de Duitse landelijke databeschermingsautoriteiten en die van verschillende deelstaten, waaronder Beieren. Het is een van de weinige keren dat spyware uitgebreid is onderzocht door derden en niet door de leverancier of de overheid die de spyware gebruikt.

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Het Duitse bedrijf DigiTask was een van de eerste bedrijven die software ontwikkelde om computers en telefoons te hacken en te doorzoeken. De Duitse overheid gebruikte sinds 2007 de spyware van DigiTask. Het bedrijf leverde haar spyware ook aan Nederland.

In 2011 werd de spyware onderzocht door het hackerscollectief CCC en de Duitse landelijke databeschermingsautoriteiten en die van verschillende deelstaten, waaronder Beieren. Het is een van de weinige keren dat spyware uitgebreid is onderzocht door derden en niet door de leverancier of de overheid die de spyware gebruikt.

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Voor dit profiel zijn mediaberichtgeving, rapporten van databeschermingsautoriteiten en andere openbare bronnen geraadpleegd. Ook zijn er informatieverzoeken gedaan bij de Nederlandse overheid.

De Nederlandse overheid heeft tot nu toe geen openheid van zaken gegeven over de inzet van DigiTask. Woo-verzoeken van Buro Jansen & Janssen blijven deels onbeantwoord, openbaar gemaakte documenten zijn grotendeels onleesbaar gemaakt.  lees meer

Van nieuwsblog.burojansen.nl

IN THE WAKE of President Donald Trump’s inauguration, the FBI assumes an importance and influence it has not wielded since J. Edgar Hoover’s death in 1972. That is what makes today’s batch of stories from The Intercept, The FBI’s Secret Rules, based on a trove of long-sought confidential FBI documents, so critical: It shines a bright light on the vast powers of this law enforcement agency, particularly when it comes to its ability to monitor dissent and carry out a domestic war on terror, at the beginning of an era highly likely to be marked by vociferous protest and reactionary state repression.

In order to understand how the FBI makes decisions about matters such as infiltrating religious or political organizations, civil liberties advocates have sued the government for access to crucial FBI manuals — but thanks to a federal judiciary highly subservient to government interests, those attempts have been largely unsuccessful. Because their disclosure is squarely in the public interest, The Intercept is publishing this series of reports along with annotated versions of the documents we obtained.

Trump values loyalty to himself above all other traits, so it is surely not lost on him that few entities were as devoted to his victory, or played as critical a role in helping to achieve it, as the FBI. One of the more unusual aspects of the 2016 election, perhaps the one that will prove to be most consequential, was the covert political war waged between the CIA and FBI. While the top echelon of the CIA community was vehemently pro-Clinton, certain factions within the FBI were aggressively supportive of Trump. Hillary Clinton herself blames James Comey and his election-week letter for her defeat. Elements within the powerful New York field office were furious that Comey refused to indict Clinton, and embittered agents reportedly shoveled anti-Clinton leaks to Rudy Giuliani. The FBI’s 35,000 employees across the country are therefore likely to be protected and empowered. Trump’s decision to retain Comey — while jettisoning all other top government officials — suggests that this has already begun to happen.

When married to Trump’s clear disdain for domestic dissent — he venerates strongman authoritarians, called for a crackdown on free press protections, and suggested citizenship-stripping for flag-burning — the authorities vested in the FBI with regard to domestic political activism are among the most menacing threats Americans face. Trump is also poised to expand the powers of law enforcement to surveil populations deemed suspicious and deny their rights in the name of fighting terrorism, as he has already done with his odious restrictions on immigration from seven Muslim-majority countries. Understanding how the federal government’s law enforcement agency interprets the legal limits on its own powers is, in this context, more essential than ever. Until now, however, the rules governing the FBI have largely been kept secret.

CLEVELAND, OH – JULY 18: Presumptive Republican presidential nominee Donald Trump enters the stage to introduce his wife Melania on the first day of the Republican National Convention on July 18, 2016 at the Quicken Loans Arena in Cleveland, Ohio. An estimated 50,000 people are expected in Cleveland, including hundreds of protesters and members of the media. The four-day Republican National Convention kicks off on July 18. (Photo by Alex Wong/Getty Images) Donald Trump enters the stage at the Republican National Convention on July 18, 2016, in Cleveland, Ohio. Photo: Alex Wong/Getty Images
Today’s publication is the result of months of investigation by our staff, and we planned to publish these articles and documents regardless of the outcome of the 2016 election. The public has an interest in understanding the FBI’s practices no matter who occupies the White House. But in the wake of Trump’s victory, and the unique circumstances that follow from it, these revelations take on even more urgency.

After Congress’s 1976 Church Committee investigated the excesses of Hoover’s FBI, in particular the infamous COINTELPRO program — in which agents targeted and subverted any political groups the government deemed threatening, including anti-war protesters, black nationalists, and civil rights activists — a series of reforms were enacted to rein in the FBI’s domestic powers. As The Intercept and other news outlets have amply documented, in the guise of the war on terror the FBI has engaged in a variety of tactics that are redolent of the COINTELPRO abuses — including, for example, repeatedly enticing innocent Muslims into fake terror schemes concocted by the bureau’s own informants. What The Intercept’s reporting on this new trove of documents shows is how the FBI has quietly transformed the system of rules and restraints put in place after the scandals of the ’70s, opening the door for a new wave of civil liberties violations. When asked to respond to this critique, the FBI provided the following statement:

All FBI policies are written to ensure that the FBI consistently and appropriately applies the lawful tools we use to assess and investigate criminal and national security threats to our nation. All of our authorities and techniques are founded in the Constitution, U.S. law, and Attorney General Guidelines. FBI policies and rules are audited and enforced through a rigorous internal compliance mechanism, as well as robust oversight from the Inspector General and Congress. FBI assessments and investigations are subject to responsible review and are designed to protect the rights of all Americans and the safety of our agents and sources, acting within the bounds of the Constitution.

Absent these documents and the facts of how the bureau actually operates, this may sound reassuring. But to judge how well the bureau is living up to these abstract commitments, it is necessary to read the fine print of its byzantine rules and regulations — which the FBI’s secrecy has heretofore made it impossible for outsiders to do. Now, thanks to our access to these documents — which include the FBI’s governing rulebook, known as the DIOG, and classified policy guides for counterterrorism cases and handling confidential informants — The Intercept is able to share a vital glimpse of how the FBI understands and wields its enormous power.

For example, the bureau’s agents can decide that a campus organization is not “legitimate” and therefore not entitled to robust protections for free speech; dig for derogatory information on potential informants without any basis for believing they are implicated in unlawful activity; use a person’s immigration status to pressure them to collaborate and then help deport them when they are no longer useful; conduct invasive “assessments” without any reason for suspecting the targets of wrongdoing; demand that companies provide the bureau with personal data about their users in broadly worded national security letters without actual legal authority to do so; fan out across the internet along with a vast army of informants, infiltrating countless online chat rooms; peer through the walls of private homes; and more. The FBI offered various justifications of these tactics to our reporters. But the documents and our reporting on them ultimately reveal a bureaucracy in dire need of greater transparency and accountability.

One of the documents contains an alarming observation about the nation’s police forces, even as perceived by the FBI. Officials of the bureau were so concerned that many of these police forces are linked to, at times even populated by, overt white nationalists and white supremacists, that they have deemed it necessary to take that into account in crafting policies for sharing information with them. This news arrives in an ominous context, as the nation’s law enforcement agencies are among the few institutional factions in the U.S. that supported Trump, and they did so with virtual unanimity. Trump ran on a platform of unleashing an already out-of-control police — “I will restore law and order to our country,” he thundered when accepting the Republican nomination — and now the groups most loyal to Trump are those that possess a state monopoly over the use of force, many of which are infused with racial animus.

The Church Committee reforms were publicly debated and democratically enacted, based on the widespread fears of sustained intelligence community overreach brought to light by journalists like Seymour Hersh and Betty Medsger, who covered the shocking files revealing Hoover’s activities that were seized by the Citizens Commission to Investigate the FBI in 1971. It is simply inexcusable to erode those protections in the dark, with no democratic debate.

As we enter the Trump era, with a nominated attorney general who has not hidden his contempt for press freedoms and a president who has made the news media the primary target of his vitriol, one of the most vital weapons for safeguarding basic liberties and imposing indispensable transparency is journalism that exposes information the government wants to keep suppressed. For exactly that reason, it is certain to be under even more concerted assault than it has been during the last 15 years. The revealing, once-secret FBI documents The Intercept is today reporting on, and publishing, demonstrate why protecting press freedom is more critical than ever.

Update: February 1, 2017
This article has been updated to include the role of Betty Medsger and the Citizens Commission to Investigate the FBI in exposing Hoover’s overreach.

Glenn Greenwald, Betsy Reed
January 31 2017, 1:38 p.m.

Find this story at 31 January 2017

Copyright https://theintercept.com/

Van nieuwsblog.burojansen.nl

President Trump has inherited a vast domestic intelligence agency with extraordinary secret powers. A cache of documents offers a rare window into the FBI’s quiet expansion since 9/11.

USING LOOPHOLES IT has kept secret for years, the FBI can in certain circumstances bypass its own rules in order to send undercover agents or informants into political and religious organizations, as well as schools, clubs, and businesses.

Beneath the FBI’s redaction marks are exceptions to rules on “undisclosed participation.”

If the FBI had its way, the infiltration loopholes would still be secret. They are detailed in a mammoth document obtained by The Intercept, an uncensored version of the bureau’s governing rulebook, the Domestic Investigations and Operations Guide, or DIOG. The 2011 edition of the book, which covers everything from wiretapping to how to read Miranda rights, was made public in redacted form thanks to a lawsuit brought by civil liberties groups. Beneath the FBI’s redaction marks were exceptions to rules on “undisclosed participation” that could be easy to exploit.

The FBI rules show a significant level of oversight when it comes to looking into “sensitive” groups — namely, those with religious, political, or academic affiliations. For instance, if an undercover agent wants to pose as a university student and take classes, or if an FBI handler wants to tell an informant to attend religious services — two examples straight out of the rulebook — he or she must obtain a supervisor’s approval and attest both to the operation’s importance and to its compliance with constitutional safeguards.

But all those rules go out the window if an agent decides the group is “illegitimate” or an informant spies on the group of his or her own accord.

The FBI insists that supervisors regularly review agents’ work to make sure these exceptions aren’t being misused, and that the extra steps and approvals detailed in the guide are proof that the bureau has voluntarily limited its authorities beyond what it believes to be the legal minimum.

An FBI spokesperson said that a provision in the DIOG encourages agents to err on the side of considering something sensitive if there is any doubt.

“That discretion will be part of our regular case review. Agents will be asked, ‘Hey, why isn’t that a sensitive investigative matter?’” the spokesperson said.

But civil rights groups still worry that the FBI has made use of precisely these kinds of loopholes, silently undermining cherished freedoms enshrined after a dark chapter of FBI history: the COINTELPRO program in the 1950s and ’60s, when the FBI spied on, harassed, and tried to discredit leftists, civil rights leaders, and anti-war protestors. The exposure of COINTELPRO led to a famous Senate investigation and to institutional reform. The bureau adopted new rules and stricter oversight. Since 9/11, however, these hard-won protections have been weakened. What the public has not known is by exactly how much.

“Going into political gatherings, houses of worship — these are First Amendment-protected activities,” said Farhana Khera, the executive director of Muslim Advocates, a group that originally sued to have the rulebook released, particularly over concerns about the issue of undercover infiltration. “We believed the DIOG to be a broadening of their authority to go into those spaces.”

The FBI sees it exactly the other way.

“These are a voluntary narrowing of our authorities. We learn from history and try to get better,” the spokesperson said.

NEW YORK, NY – NOVEMBER 11: Muslims exit the mosque following traditional Friday prayers outside the Islamic Center of Bay Ridge on November 11, 2016 in the Brooklyn borough of New York City. During the sermon, the mosque’s imam reflected on many issues including the election of Donald J. Trump. (Photo by Robert Nickelsberg/Getty Images) People exit the Islamic Center of Bay Ridge following traditional Friday prayers on Nov. 11, 2016, in New York’s Brooklyn borough. Photo: Robert Nickelsberg/Getty Images
THE FBI OPENLY acknowledges that some of its undercover operations can be “intrusive” and carry “a greater risk to civil liberties,” and therefore that they may require higher levels of approval or legal review. The requirements for a particular operation vary depending on how intimately the FBI employee or informant will be involved with the group, and what kind of group it is.

The FBI distinguishes between “sensitive undisclosed participation,” in political, religious, media, or academic groups, and “non-sensitive undisclosed participation,” in groups “such as a business or a club formed for recreational purposes.” (Even this basic distinction was previously redacted.)

The once-censored rules explain that for non-sensitive groups, a supervising agent must sign off if the plan is for an FBI agent to infiltrate a group in order to gain information or as part of an investigation. An informant doing the same thing does not require extra approval. If the participation of the FBI agent or informant will influence the group’s activities, then the head counsel for the division needs to review the plan. If the FBI’s presence is specifically likely to influence the group’s First Amendment-protected activity (if, as the guide specifies, the FBI participant plans to steer the group’s agenda on “social, religious, or political” issues), then the FBI’s office of general counsel must get involved, and perhaps senior FBI officials.

The requirements for infiltrating a group considered sensitive are even more stringent: The FBI agent must get approval both from a supervisor and from the head lawyer of his or her division, while also notifying a committee that oversees FBI operations. And if the intention or likelihood is that this infiltration will influence a sensitive group’s exercise of its First Amendment rights, then the FBI director must sign off.

These rules appear to offer layers of oversight. But they only kick in when certain conditions are met. The policy guide gives agents considerable discretion in deciding whether infiltrating an organization constitutes “undisclosed participation” at all — and therefore, whether it requires the extra approvals.

For instance, none of the rules apply if a foreign government operates the organization, or if the FBI “reasonably” believes the organization to be acting on behalf of a foreign power, so long as its U.S.-based members are mostly foreigners. And the rules only apply to groups the FBI deems “legitimate.” The redacted definition of a “legitimate” group is one “formed for lawful purposes” and whose “activities are primarily lawful.” This would exclude obvious criminal networks but could also exclude activist groups if an agent decides that their “primary purpose” is to hold protests involving unlawful acts.

“An organization whose primary purpose is to engage in destruction of property as a means to bring public attention to commercial activities that harm the environment is also not a legitimate organization within the meaning of this definition because its primary purpose is to engage in criminal conduct,” the guide says. “On the other hand, an organization that seeks to bring attention to a social or political cause by engaging primarily in lawful protest or advocacy, but also some acts of civil disobedience, is a legitimate organization.”

Michael German, a former FBI agent who is a fellow with the Brennan Center for Justice at New York University School of Law, said that such language gives agents wiggle room to justify themselves if they are found to have been improperly investigating an organization.

“It’s not that you can’t ever investigate a legitimate organization, it’s just that it requires an additional level of oversight because of the history of abuse,” German said. “So do we really want to have agents parsing the language of what’s legitimate and what isn’t legitimate without that oversight?”

Classifying constitutionally protected activities as “illegitimate” is not a distant possibility. There have been many recent examples of the FBI twisting or ignoring the rules in order to investigate political or religious groups. In 2010, to take just one example, a Justice Department inspector general found that the FBI had violated policy in investigating groups including the Catholic Worker, Greenpeace, and People for the Ethical Treatment of Animals. Documents released last year showed that the bureau tracked Keystone Pipeline protesters without proper authorization. The FBI has also generated legal controversy with its use of informants in mosques.

The definition of what constitutes “participation” is also flexible in the FBI’s reading.

It was previously known that FBI agents and informants could go to public events without identifying themselves and attend up to five meetings of an organization without triggering the undisclosed participation rules — although sending an informant or employee to a religious service always requires a supervisor’s approval, the guide states.

Another loophole allows that if an informant volunteers information about a group without having been asked to collect it, FBI agents don’t have to worry about whether the informant obtained the information through undisclosed participation.

And although the rules require legal review if the FBI employee’s or informant’s participation is intended to influence a group, what constitutes “influencing” is narrowly defined: A source or undercover employee “simply voting or expressing an opinion” does not count. When it comes to First Amendment concerns, the FBI’s activities must “substantially affect the agenda of the organization” in order to raise flags.

There are certain caveats that go in a more restrictive direction: For instance, the rules specify that joining a mailing list or following a group on Twitter does constitute “participation,” and that agents are supposed to err on the side of caution when determining whether or not a group is “legitimate” or whether having undercover agents participate in group activities is “sensitive.”

Tarek Ismail, senior staff attorney with CLEAR, an initiative at the City University of New York that works with communities affected by counterterrorism policies, said that the breadth of these exceptions elaborated in the DIOG demonstrates “broad rules created and then chipped away.”

He added that the rules’ apparent flexibility made sense of the experiences of many of his clients. “There’s a disconnect between what’s on paper and what’s actually done,” Ismail said. “We see significant departures from these rules in our cases, but clearly it’s not because these rules are hard to live with.”

US Attorney General Michael Mukasey listens to a speaker during the graduation ceremony for Federal Bureau of Investigation Special Agents at the FBI Academy in Quantico, Virginia, on October 30, 2008. AFP PHOTO / Saul LOEB (Photo credit should read SAUL LOEB/AFP/Getty Images) U.S. Attorney General Michael Mukasey listens to a speaker during the graduation ceremony for FBI special agents at the FBI Academy in Quantico, Va., on Oct. 30, 2008. Photo: Saul Loeb/AFP/Getty Images
THE DIOG, DESPITE being hundreds of pages of dense bureaucracy, actually documents a loosening of the standards enacted to rein in the FBI after COINTELPRO and other scandals involving the bureau under Director J. Edgar Hoover.

“The baseline that we started from in the 1970s was that there were no rules governing the FBI,” said Emily Berman, a law professor at the University of Houston.

The fallout from COINTELPRO resulted in new guidelines from the attorney general that reined in domestic intelligence gathering by requiring that agents’ investigations be focused on actual criminal activity. Yet in the decades since — and especially after the 9/11 attacks — the bureau’s mandate has expanded again, beyond the realm of crime fighting and toward intelligence gathering in the name of combating terrorism.

The FBI, which has no single statute governing its activities, has operated under a series of guidelines issued by attorneys general over the years. The DIOG first came out in the last months of the Bush administration in 2008, implementing guidelines from then-Attorney General Michael Mukasey. Mukasey emphasized intelligence sharing and the retention of information “regardless of whether it furthers investigative objectives in a narrower or more immediate sense.” He cited the “historical evolution of the FBI” after the 9/11 attacks toward the elimination of the traditional wall between foreign intelligence and domestic law enforcement.

At the time, civil liberties groups were alarmed that Mukasey’s rules, known as the “Attorney General’s Guidelines for Domestic FBI Operations,” broadened the authorities of the FBI to collect and retain more data than ever before, and allowed for “assessments,” in which agents could probe for information without evidence of wrongdoing. Some of the tactics authorized for assessments were quite invasive, allowing for physical surveillance, interviews, and the tasking of informants to collect information.

Muslim Advocates, with other groups, sued to have the whole rulebook released without redactions. They argued that the redacted portions couldn’t be very sensitive given that the FBI had invited advocacy groups to review portions of the guide at its offices before implementation. But in 2011, a judge disagreed and allowed the redactions to remain. Although portions of the DIOG have been updated since then — the FBI recently posted a new version from 2013, also redacted — the 2011 guide remains the baseline document.

Some of the redactions are inconsistent, with identical text covered in one place and not in another. Most of the text beneath the redactions simply spells out designations of authorities and necessary signoffs for particular activities.

“Now being able to look at what was redacted, it’s hard to understand what the justification would have been” for withholding the information, German said, “other than to prevent having to have a public dialogue about whether these changes to the FBI’s authority were appropriate.”

“This is something that the public has a right to know, what policies the government is operating under, particularly when they’re using authorities that have both a long history and recent history of abuse,” said German. “Anytime you come across some sort of improper activity, you can’t say it’s improper unless you know what the rules are.”

Cora Currier
January 31 2017, 1:06 p.m.

Find this story at 31 January 2017
Copyright https://theintercept.com/

Van nieuwsblog.burojansen.nl

Rules governing the use of national security letters allow the FBI to obtain information about journalists’ calls without going to a judge or informing the targeted news organization.

President Trump has inherited a vast domestic intelligence agency with extraordinary secret powers. A cache of documents offers a rare window into the FBI’s quiet expansion since 9/11.

This story was originally published on June 30, 2016. We are republishing it along with new reporting on other FBI documents.

SECRET FBI RULES allow agents to obtain journalists’ phone records with approval from two internal officials — far less oversight than under normal judicial procedures.

The classified rules, obtained by The Intercept and dating from 2013, govern the FBI’s use of national security letters, which allow the bureau to obtain information about journalists’ calls without going to a judge or informing the news organization being targeted. They have previously been released only in heavily redacted form.

Media advocates said the documents show that the FBI imposes few constraints on itself when it bypasses the requirement to go to court and obtain subpoenas or search warrants before accessing journalists’ information.

The rules stipulate that obtaining a journalist’s records with a national security letter requires the signoff of the FBI’s general counsel and the executive assistant director of the bureau’s National Security Branch, in addition to the regular chain of approval. Generally speaking, there are a variety of FBI officials, including the agents in charge of field offices, who can sign off that an NSL is “relevant” to a national security investigation.

There is an extra step under the rules if the NSL targets a journalist in order “to identify confidential news media sources.” In that case, the general counsel and the executive assistant director must first consult with the assistant attorney general for the Justice Department’s National Security Division.

But if the NSL is trying to identify a leaker by targeting the records of the potential source, and not the journalist, the Justice Department doesn’t need to be involved.

The guidelines also specify that the extra oversight layers do not apply if the journalist is believed to be a spy or is part of a news organization “associated with a foreign intelligence service” or “otherwise acting on behalf of a foreign power.” Unless, again, the purpose is to identify a leak, in which case the general counsel and executive assistant director must approve the request.

“These supposed rules are incredibly weak and almost nonexistent — as long as they have that second signoff, they’re basically good to go,” said Trevor Timm, executive director of the Freedom of the Press Foundation, which has sued the Justice Department for the release of these rules. “The FBI is entirely able to go after journalists and with only one extra hoop they have to jump through.”

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DIOG-Appendix-Media-NSLs
4 pages
A spokesperson for the FBI, Christopher Allen, declined to comment on the rules or say if they had been changed since 2013, except to say that they are “very clear” that “the FBI cannot predicate investigative activity solely on the exercise of First Amendment rights.”

The Obama administration has come under criticism for bringing a record number of leak prosecutions and aggressively targeting journalists in the process. In 2013, after it came out that the Justice Department had secretly seized records from phone lines at the Associated Press and surveilled Fox News reporter James Rosen, then-Attorney General Eric Holder tightened the rules for when prosecutors could go after journalists. The new policies emphasized that reporters would not be prosecuted for “newsgathering activities,” and that the government would “seek evidence from or involving the news media” as a “last resort” and an “extraordinary measure.” The FBI could not label reporters as co-conspirators in order to try to identify their sources — as had happened with Rosen — and it became more difficult to get journalists’ phone records without notifying the news organization first.

Yet these changes did not apply to NSLs. Those are governed by a separate set of rules, laid out in a classified annex to the FBI’s operating manual, known as the Domestic Investigations and Operations Guide, or DIOG. The full version of that guide, including the classified annex, was last made public in redacted form in 2011.

The section of the annex on NSLs obtained by The Intercept dates from October 2013 and is marked “last updated October 2011.” It is classified as secret with an additional restriction against distribution to any non-U.S. citizens.

Emails from FBI lawyers in 2015, which were released earlier this year to the Freedom of the Press Foundation, reference an update to this portion of the DIOG, but it is not clear from the heavily redacted emails what changes were actually made.

In a January 2015 email to a number of FBI employee lists, James Baker, the general counsel of the FBI, attached the new attorney general’s policy and wrote that “with the increased focus on media issues,” the FBI and Justice Department would “continue to review the DIOG and other internal policy guides to determine if additional changes or requirements are necessary.”

“Please be mindful of these media issues,” he continued, and advised consulting with the general counsel’s office “prior to implementing any techniques targeting the media.” But the email also explicitly notes that the new guidelines do not apply to “national security tools.”

Allen, the FBI spokesperson, told The Intercept in an emailed statement that “the FBI periodically reviews and updates the DIOG as needed” and that “certainly the FBI’s DIOG remains consistent with all [attorney general] guidelines.”

Bruce Brown, executive director of the Reporters Committee for Freedom of the Press, said that the “use of NSLs as a way around the protections in the guidelines is a serious concern for news organizations.”

Last week, the Reporters Committee filed a brief in support of the Freedom of the Press Foundation’s lawsuit for the FBI’s NSL rules and other documents on behalf of 37 news organizations, including The Intercept’s publisher, First Look Media. (First Look also provides funding to both the Reporters Committee and the Freedom of the Press Foundation, and several Intercept staffers serve on the foundation’s board.)

Seeing the rules in their uncensored form, Timm, of the Freedom of the Press Foundation, said that the FBI should not have kept them classified.

“Redacting the fact that they need a little extra signoff from supervisors doesn’t come close to protecting state secrets,” he said.

The FBI issues thousands of NSLs each year, including nearly 13,000 in 2015. Over the years, a series of inspector general reports found significant problems with their use, yet the FBI is currently pushing to expand the types of information it can demand with an NSL. The scope of NSLs has long been limited to basic subscriber information and toll billing information — which number called which, when, and for how long — as well as some financial and banking records. But the FBI had made a habit of asking companies to hand over more revealing data on internet usage, which could include email header information (though not the subject lines or content of emails) and browsing history. The 2013 NSL rules for the media only mention telephone toll records.

Another controversial aspect of NSLs is that they come with a gag order preventing companies from disclosing even the fact that they’ve received one. Court challenges and legislative changes have loosened that restriction a bit, allowing companies to disclose how many NSLs they receive, in broad ranges, and in a few cases, to describe the materials the FBI had demanded of them in more detail. Earlier this month, Yahoo became the first company to release three NSLs it had received in recent years.

It’s unclear how often the FBI has used NSLs to get journalists’ records. Barton Gellman, of the Washington Post, has said that he was told his phone records had been obtained via an NSL.

The FBI could also potentially demand journalists’ information through an application to the Foreign Intelligence Surveillance Court (or FISA court), which, like NSLs, would also not be covered by the Justice Department policy. The rules for that process are still obscure. The emails about revisions to the FBI guidelines reference a “FISA portion,” but most of the discussion is redacted.

For Brown, of the Reporters Committee, the disclosure of the rules “only confirms that we need information about the actual frequency and context of NSL practice relating to newsgathering and journalists’ records to assess the effectiveness of the new guidelines.”

Top photo: Jerry Delakas, 63, a longtime newspaper vendor in Manhattan’s Cooper Square, stands by his newsstand on April 3, 2012, in New York City.

Cora Currier
January 31 2017, 12:37 p.m.

Find this story at 31 January 2017
Copyright https://theintercept.com/