The memos discussing FISA are dated in early 2015, and both are directed at the FBI’s National Security Division. The documents are on the same subject and outline some of the same steps for FISA approvals, but one is unclassified and mostly unredacted, while the other is marked secret and largely redacted. The rules apply to media entities or journalists who are thought to be agents of a foreign government, or, in some cases, are of interest under the broader standard that they possess foreign intelligence information.
Jim Dempsey, a professor at Berkeley Law and a former member of the Privacy and Civil Liberties Oversight Board, an independent federal watchdog, said that the rules were “a recognition that monitoring journalists poses special concerns and requires higher approval. I look on it as a positive, and something that the media should welcome.”
“They apply to known media, not just U.S. media,” he added. “Certainly back in the Cold War era, certain Soviet media entities were in essence arms of the Soviet government, and there may have been reasons to target them in traditional spy-versus-spy context. And it’s possible today that there are circumstances in which a person who works for a media entity is also an agent of a foreign power. Not every country lives by the rules of journalistic integrity that you might want.”
But Ramya Krishnan, a staff attorney with the Knight Institute, said that concerns remained. “There’s a lack of clarity on the circumstances when the government might consider a journalist an agent of a foreign power,” said Krishnan. “Think about WikiLeaks; the government has said they are an intelligence operation.” Hannah Bloch-Wehba, a professor at Drexel University, said that “a probable example would be surveillance of reporters who are working for somewhere like RT” — the state-funded Russian television network — “and as a consequence, anyone who is talking to reporters for RT. The reporters are probably conscious they are subject to surveillance, but their sources might not be.”