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PRIVACY, SURVEILLANCE, AND PRESS FREEDOM
-- By SebastianValdezOranday - 24 Apr 2024
REPORTER'S PRIVILEGE: | |
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< | Reporters exist to break stories. In most instances, journalists perform this function by seeking out stories and publishing them. In extraordinary scenarios, particularly with respect to the publication of information damaging to the government, journalists are often unable to perform their function without the aid of an insider aware of a hidden story already ripe for publication: That’s where the importance of the whistleblower and confidential communication with them lies. | >
> | In most instances, journalists perform their reporting duty by seeking out stories and publishing them. In extraordinary scenarios, particularly with respect to the publication of information damaging to the government, journalists are often unable to perform their function without the aid of an insider aware of a hidden story already ripe for publication: That’s where the importance of the whistleblower and confidential communication with them lies. | | | | |
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< | When Edward Snowden sought to reveal information related to the mass global surveillance conducted by the United States and Five Eyes, he first –– unsuccessfully – attempted to contact reporter Glenn Greenwald, before successfully contacting documentary filmmaker Laura Poitras. This specific interaction between a reporter and their confidential source can be seen in the documentary CitizenFour. Despite the publicity accorded to Snowden, reporters every day have similar interactions with confidential sources, about matters and stories that would never come to light without the initiative of the whistleblower, try as a reporter might to find the story unaided. | >
> | When Edward Snowden sought to reveal information related to the mass global surveillance conducted by the United States and Five Eyes, he first –– unsuccessfully – attempted to contact reporter Glenn Greenwald, before successfully contacting documentary filmmaker Laura Poitras. Despite the publicity accorded to Snowden, reporters every day have similar interactions with confidential sources, about matters and stories that would never come to light without the initiative of the whistleblower, try as a reporter might to find the story unaided. | | | | |
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< | These reporter-source communications, however, have not been easy to navigate, particularly since the 1970s. Aside from the inherent difficulties related to secrecy when a journalist communicates with a sensitive source, two major developments in the law have occurred that impact a reporter’s freedom to seek the truth and report it while protecting the confidentiality of sources. | >
> | These reporter-source communications, however, have not been easy to navigate. Aside from the inherent difficulties related to secrecy when a journalist communicates with a sensitive source, two major developments in the law have occurred that impact a reporter’s freedom to seek the truth and report it while protecting the confidentiality of sources. | | | | |
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< | First, we learned from the Supreme Court that a reporter may not rely on the First Amendment as a defense to avoid testifying to reveal confidential source information when called before a federal grand jury. Branzburg v. Hayes, 408 U.S. 665 (1972). Still, this ruling is limited to federal courts, and since then, most states have enacted reporter’s shield laws, protecting reporter-source confidentiality to varying degrees depending on the circumstance. Shield laws and their lack of existence at the federal level are important for after-the-fact examinations of a reporter’s dealing with a confidential source or whistleblower, but they are entirely useless when the government is seeking to unveil a source’s identity not after publication, but before and during the communication between the whistleblower and the reporter. It is in this stage of government information gathering that the other legal development in the 1970s reared its ugly head and planted the seed for the real obstacles for reporters and their privacy. | >
> | First, we learned from the Supreme Court that a reporter may not rely on the First Amendment as a defense to avoid testifying to reveal confidential source information when called before a federal grand jury. Branzburg v. Hayes, 408 U.S. 665 (1972). Still, this ruling is limited to federal courts, and since then, most states have enacted reporter’s shield laws, protecting reporter-source confidentiality to varying degrees depending on the circumstance. Shield laws and their lack of existence at the federal level are important for after-the-fact examinations of a reporter’s dealing with a confidential source or whistleblower, but they are entirely useless when the government is seeking to unveil a source’s identity not after publication, but before and during the communication between the whistleblower and the reporter. It is in this stage of government information gathering that the second legal development in the 1970s reared its ugly head and planted the seed for the real obstacles for reporters and their privacy. | | | FISA AND ITS UPDATES:
In the late 1970s, the Foreign Intelligence Surveillance Act ("FISA") came into effect.Among other things, FISA Section 702 authorizes law enforcement to conduct warrantless surveillance of the electronic communications –– including text messages, emails, and phone calls –– between foreigners located outside of the U.S. and the American citizens on the other side of the communications, in the United States. This includes journalists. | |
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< | Luckily for reporters seeking to avoid surveillance under FISA, Section 702 would need to be reauthorized in 2024 before warrantless surveillance could (lawfully) continue. Well, in April 2024, Congress reauthorized Section 702, only it came with even more expansive surveillance powers. | >
> | These new FISA provisions allow law enforcement to force any service provider to disclose information obtained, from Google to the owner of the local coffee shop providing free Wi-Fi, and everyone in between. These moves allow any party privy to confidential communications, even indirectly, to become government informants. Whether this actually occurs or not is irrelevant to the practice of whistleblowing and communication between reporters and their sources, because even the threat is enough to produce a chilling effect that would scrap important stories about the government’s machinations. Would Snowden have zealously contacted Greenwald and Poitras, knowing his encryption measures might not be enough to counter a landlord, service technician, or apartment handyman with access to the hardware for their private communications? | | | | |
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< | These new provisions allow law enforcement to force any service provider to disclose information obtained, from Google to the owner of the local coffee shop providing free Wi-Fi, and everyone in between. Put simply, these moves allow any party privy to confidential communications, even indirectly, to become government informants. Whether this actually occurs or not is irrelevant to the practice of whistleblowing and communication between reporters and their sources, because even the threat is enough to produce a chilling effect that would scrap important stories about the government’s machinations. Would Snowden have zealously contacted Greenwald and Poitras, knowing his encryption measures might not be enough to counter a landlord, service technician, or apartment handyman with access to the hardware for their private communications? | >
> | JOURNALISTS AND INTERCEPTION UNDER FISA: | | | | |
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< | For the executive, nothing could be greater, and the President celebrates Section 702 as the great tool it is. After all, more than half of the President’s daily intelligence briefing comes from Section 702-obtained information. | >
> | We ask, then, how does the government target US-based journalists in their communications with foreign sources, and what kind of recourse is available to journalists who are targeted? | | | | |
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< | With these developments in mind, how, then, does the modern reporter and journalist adapt to the changing surveillance environment, particularly when working with whistleblowers on stories contrary to the government’s interests? | >
> | We know that the federal government relies on FISA and National Security Letters to target journalists (see here). We also know that enforcement agencies have adopted special rules for surveilling members of the media, under a guise of ensuring additional safeguards before approving surveillance of the media. For example, one special rule used by the FBI provides guidance for approval for when the government is seeking surveillance for the express purpose of finding a confidential source. | | | | |
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< | WHAT REPORTERS DO: | >
> | This practice has been going on for years, and reporters seemingly have become comfortable with the idea that the U.S. government spies on them for the express purpose of obtaining their communications with foreign confidential sources, as evident through increasing the proliferation of encryption and privacy software in these communications. | | | | |
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< | Reporters only one option within their immediate control and away from the mercy of the legislative process. | >
> | Other recourse should be available for reporters, though. Circumvention of shield laws should not allow the government a license to all confidential reporting for use in any forum. Obtaining the information on any whim is one thing, but actually using it to unmask a source or bring prosecution is another. To these communications, I argue, courts should rely on an exclusionary rule as a remedy when First Amendment interests are under grave threat. Further, even before judicial remedies come into play, law enforcement agencies seeking to surveil journalists specifically for information obtained in the course of their role as a reporter should be subject to more stringent procedures than a “higher” internal review. When a request to target a reporter reaches FISA Court, judges should apply a standard balancing test to weigh the government’s interest against the reporter’s First Amendment interests. Then, even in the case where a surveillance order is granted, judicial remedies avoiding prosecution and preventing source unmasking should remain available. | | | | |
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< | Journalists and whistleblowers, actual and potential, can work together to remove insecurities surrounding the level of trust. This can be accomplished through education and open dialogue between journalists and sources to ensure everyone’s privacy interests are protected, while creating a bridge between the lone whistleblower and the media. In this same vein, journalists can and do perform more legwork to protect privacy, like using encrypted messenger services, enabling private voice, video, and text communications. | | | | |
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< | WHY IT MATTERS: | >
> | OUTLOOK: | | | | |
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< | It is no exaggeration to say that journalism is dying. When not anxiously waiting for the term where the Supreme Court will finally decide to re-examine First Amendment protections afforded to journalists, reporters must grapple with the threat of constant government surveillance. The government giveth and taketh away, and a big champion for continued ethical reporting might just be state and local governments. New York, for example, gives tax credits to newsrooms hiring reporters in attempts to stimulate growth of the field that is still hanging on after recent years. | >
> | When not anxiously waiting for the term where the Supreme Court will finally decide to re-examine First Amendment protections afforded to journalists, reporters must grapple with the threat of constant government surveillance. | | | | |
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< | For the profession that has survived pandemic layoffs, accusations of fake news, and a shift from print to digital consumption, its final opponent might be the government physically blocking access to stories hidden behind anonymous sources and whistleblowers. Without legislative action to reduce warrantless mass surveillance, the journalists of today will be tasked with learning a whole new skillset to bring sources into the fold of seeking the truth and reporting it.
If this is an argument it needs to be in contact with the points on the other side. I'm not aware that anyone argues that reporters are entitled to converse with sources in a surveillance-free environment. Reporters physically outside the US do not carry with them an extraterritorial immunity either to local listening allied with the US or to US listening which is comprehensive "outside." Without regard to targeting journalists for interception (which raises additional legal issues and is likely to involve far more prospective legal analysis within the relevant agencies than you are following here), our problems concern the collateral consequences of intercepting communications by a non-US target of interception with a US-placed US-national journalist, a situation in which claims of right against something after interception (unmasking, analysis, legal intervention, prosecution) are at their strongest. The analysis should focus as closely as possible, I think.
National security reporters, reporters who cover crime domestic and international, political reporters—they are professionals, not naive. We can assume they have some counter-intelligence capability, and the intention to use it only when it is necessary to protect sources. Reporters cannot and do not assume that their work product is protected against interception by any other than technical means.
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> | If governments can recognize the continued special status of reporters and their interests, reporters might have some breathing room to operate with confidential sources, even with the knowledge that the government is surveilling them. By minimizing the graver threat of prosecution and conviction based on the information obtained, both reporters and the government can have their information-gathering interests served. | | |
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