Mass Surveillance, Leak Investigations & the Chilling Effect Against Journalism
A number of American journalists, who work for small and large media organizations, contend that the spike in leak investigations is tied to government mass surveillance. They report experiences with sources, who are no longer willing to speak to them. They have found it increasingly difficult to build new relationships with sources. A chilling effect has made it exceptionally difficult to determine what to do to maintain confidentiality, according to a report by Human Rights Watch (HRW) and the American Civil Liberties Union (ACLU).
In response to revelations from NSA whistleblower Edward Snowden of dragnet and often indiscriminate surveillance, HRW and the ACLU decided to survey various journalists and lawyers, who have felt the climate shift as the scope of surveillance has been revealed and as President Barack Obama has launched more leak prosecutions than any previous American president.
I’ll address what is in the report on journalists and hopefully cover the part of the report that details the effect on lawyers in the coming days.
The Committee to Protect Journalists (CPJ) published a report last year that made the connection between leak investigations and mass surveillance. This report put together with interviews from journalists brings renewed attention to how the war on leaks by the Obama administration has become a much wider war on information that has impacted journalists as well as whistleblowers.
From the report [PDF], “Many journalists said that the government’s increased capacity to engage in surveillance—and the knowledge that it is doing so on an unprecedented scale—has made their concerns about how to protect sources much more acute and real.” They believed that the increased number of leak investigations was connected to government surveillance.
Peter Maass, a senior writer at The Intercept, asserted, “Leak investigations are a lot easier because you leave a data trail calling, swiping in and out of buildings, [and] walking down a street with cameras. It’s a lot easier for people to know where you’re going and how long you’re there.” And, Barton Gellman, who received documents from Snowden, said, “It used to be that leak investigations didn’t get far because it was too hard to uncover the source, but with digital tools it’s just much easier, and sources know that.”
These statements are not just conjecture. Lisa Monaco, assistant attorney general of the National Security Division of the Justice Department, told Senate intelligence committee in February 2012, “It bears noting that recent advances in technology have provided new opportunities for investigators, in terms of both identifying leak suspects and building successful prosecutions.”
“In particular, some Intelligence Community agencies have enhanced their ability to audit information technology systems, allowing investigators in some instances to obtain important information regarding the timing and scope of access to classified information by potential subjects,” Monaco added. “Improved tools—including auditing measures, employee physical access or badging records, and phone records—play an important role in internal investigations and aid in unmasking individuals who leak classified information. The Department applauds and encourages the continuing progress in this area.”
The continued revelations from Snowden have made journalists acutely aware of surveillance capabilities. One national security reporter, who did not want to be named, said the revelations showed what journalists are doing is “not good enough.”
“I used to think that the most careful people were not at risk, [that they] could protect sources and keep them from being known. Now we know that isn’t the case,” the national security reporter suggested. “That’s what Snowden meant for me. There’s a record of everywhere I’ve walked, everywhere I’ve been.”
New Yorker staff writer Jane Mayer, who authored The Dark Side on Vice President Dick Cheney and other Bush administration officials leading roles in torture, indefinite detention, renditions, secret CIA prisons and warrantless wiretappings, acknowledged that she can no longer “count the number of people afraid of the legal implications” of speaking to her. “The added layer of fear makes it so much harder.”
No journalists claimed to be able to guarantee that they could protect their communications with sources from the government, especially if the government had launched an investigation.
“If the government wants to get you, they will,” said Washington Post reporter Adam Goldman. And, Gellman argued, ““If a first-rate intelligence agency decides to target you specifically and invest serious resources, there’s nothing you can do.”
A “prominent journalist,” suggested that the US government might be able to “fill its intelligence gaps on US persons” with information from journalists that had been collected by “friendly foreign governments.”
The notion that the US government would collect data from journalists just for their own intelligence purposes is not far-fetched. In 2004, FBI agents obtained the phone records of Washington Post staff writer Ellen Nakashima, “who was based in Jakarta, Indonesia, at the time.” The FBI also “obtained telephone records of an Indonesian researcher in the paper’s Jakarta bureau, Natasha Tampubolon.” Plus, “Records of New York Times reporters Raymond Bonner and Jane Perlez, who worked in Jakarta in 2004, also were compromised.”
The FBI would not disclose what had prompted the seizure of records but the Post noted reporters targeted had been “writing articles about Islamic terrorism in Southeast Asia.”
Agents had initially sought information from a “7-month time period,” the “time period of interest for the leak investigation.” Twenty-two months of records for one Post reporter were given to the FBI by one analyst at a telecommunications company. “Only 38 days fell within the 7-month period of interest.” Twenty-two months of records for a telephone number attached to a bureau of the Post, “which only 20 days fell within the 7-month period of interest” were also obtained. For five other phone numbers, “none of the retrieved records provided to the FBI fell within the 7-month period of interest.”
The records were uploaded to a database and remained in the database for over 3 years.
An “Insider Threat” program instituted after military whistleblower Chelsea Manning’s disclosure of hundreds of thousands of government documents to WikiLeaks has increased the ability of agencies to target leaks to media as if they were acts of espionage.
In the aftermath of Snowden’s disclosures, Director of National Intelligence James Clapper has been involved in developing a system of total surveillance of security clearance holders, including when they are “off the job.” Clapper has also instituted a policy prohibiting any unauthorized contact with media.
These developments have led to the “sudden disappearance of formerly reliable sources, or the reluctance of sources to discuss seemingly innocuous and unclassified matters.”
“One decorated intelligence and national security journalist indicated that even retired sources are increasingly reluctant to speak,” according to the report. “Though firing or revocation of security clearances no longer worries them, they fear prosecution, and ‘now [they] have to worry that their communications can be reached on a basis far short of probable cause.'”
The climate impacts a specific sector of journalism. As one can imagine, intelligence reporters have it the worst. Then, as one national security reporter contended, journalists covering the Justice Department and terrorism are victims of this chilling effect. Of course, military and national security reporters are subjected to the effect too.
It puts journalists in a situation where they have to decide how committed they are to independent journalism. Certainly, there are spokespeople at all the agencies, who will tell them what they want the public to think about the work they are doing. They can simply reprint those statements and ask questions and see how far they get. Sometimes, government officials will even feed those journalists leaks to promote policies, operations or initiatives in government that make agencies look good. But, for journalists who believe in freedom of the press and the public’s right to know, this is no way to practice journalism.
It is very difficult to get going when journalists want to make first contact with a source, as Gellman explained. But the report explained that some journalists will try the following to still do their job with some peace of mind that they are secure:
…[W]hen forced to call a source, a couple of journalists indicated a preference for using landlines over cell phones, noting how easily one can intercept the contents of a cell phone call. “Almost anybody with the right equipment can eavesdrop on a cellphone call; landlines are more secure from snooping (though of course [the] government … can capture content with [a] wiretap),” observed Peter Maass…
Of course, that still leaves the issue of how much information the government really needs to successfully prosecute a person for a leak. That a person is talking to a reporter can be enough.
“The government doesn’t need to know what people are talking about—just that they’re talking. That can go a long way in supporting the prosecution’s case in a leak investigation,” Maass stated.
One national security reporter suggested burner phones to “thwart” a leak investigation. But HRW and the ACLU found that a lot of reporters do not want to act like spies while doing their job, especially when they are not doing anything that should be considered criminal.
Overall, the report provides a portrait of how surveillance is speeding the decline of investigative journalism.
“What you’re losing now is spontaneity,” Mayer explained. There are fewere “spur-of-the-moment stories.” It is also curtailing freedom of speech because, “Most of these leaks are just criticism, frankly.” Nobody is wanting to become an enemy of the state but are patriots concerned about their government.
Yet, as the Washington Post’s Dana Priest put it, the government thinks “anything classified should stay secret.” They are “getting the balance between guarding information and making it public wrong.”
Which means that reporters, who have previously been stationed in countries like China, where they had to worry about surveillance, are finding that they have to worry about US government surveillance too.
The Obama administration does not care if investigative journalism is collateral damage. Its priority is to control the free flow of information so its message is not undermined by critics. And, in the end, the administration has pursued measures against any leaks related to national security or the military because the law—including the Espionage Act—and advanced technology can so easily be targeted against those responsible for leaks.