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United States13 August 2008

FBI apologizes to newspapers for spying on reporters: the bureau does not explain the need to investigate journalists

Reporters Without Borders requests that the FBI releases more information about the procedures they used in 2004 to obtain reporters’ phone records while they were stationed at the New York Times and the Washington Post’s bureaus in Indonesia.

Reporters Without Borders welcomes the apology the FBI made to the newspapers’ editors for improperly using the so-called ’exigent letters’ to obtain information about reporters’ phone conversations, but the bureau needs to come forward and provide more information as to why and how they obtained this information.

"We urge them to be transparent about the reasons to obtain the records with such urgency and secrecy," the press freedom organization said. "We urged the bureau to refrain from using similar procedures in the future. Improper monitoring of reporters is harmful to a free press and undermines the free flow of information"

New York Times reporters Ray Bonner and Jane Perlezy, and Washington Post staff writer Ellen Nakashima and researcher Natasha Tampubolon were working in South East Asia on a story about Islamic terrorism at the time their phone records were seized.

The Justice Department’s Inspector General Glenn A. Fine, who is reviewing the FBI’s procedures due to allege misuse of records demands, discovered mistakes the bureau made when phone records were requested. For instance, the FBI should have seek approval from the deputy attorney general, which they did not in this case.

The federal shield law passed by the House, the Free Flow of Information Act (FFOIA), states that a member of the media, or “covered person,” cannot be subpoenaed for a testimony unless dictated by a court. Section 2.(a)(1) of the FFOIA defines one of the exception to order a member of the media to testify as “... that the party seeking to compel production of such testimony or document has exhausted all reasonable alternative sources (other than a covered person) of the testimony or document.”

The FBI has not disclosed yet why they went after journalists’ phone records or the nature of the investigation at the time.

On Saturday, The Washington Post stated, “Mueller [Director of the FBI] called the top editors [at each paper] to express regret that agents had not followed proper procedures when they sought telephone records under a process that allowed them to bypass grand jury review in emergency cases."

“Exigent letters,” or National Security Letter (NSL), are sent to individuals or entities ordering to provide data or records to security government agencies such as the FBI or the CIA. The NSL, a form of administrative subpoena, does not require a judicial oversight and it also contains a gag order banning the recipient from ever disclosing that the NSL was issued.

Senators Arlen Spector (R-Pa.) and Patrick Leahy (D-Vt.) also issued a letter on Monday, August 11th, pressing the FBI to come forward with more information and an explanation about obtaining reporters’ phone records.

“While we commend you for personally apologizing to the newspapers on behalf of the FBI, and for personally bringing this matter to the Committee’s attention, we expect to receive a more complete accounting of this violation of the Justice Department’s guidelines intended to protect privacy and journalists’ First Amendment rights,” the senators wrote in a letter addressed to FBI Director Robert Mueller.

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