American surveillance raises tough questions for British journalists

By Media Reform Coalition / Tuesday June 11, 2013 Read More
By Laurence Dodds Over the last week, revelations about the NSA’s mass surveillance programme have burst into the public sphere in a storm of reports, op-eds, comments and interviews. But what hasn’t gained quite so much attention is how this programme threatens the press itself. For any journalist who uses the web – and, spoiler, that’s all of them – the scale and depth of spying that is now being revealed endangers one of the most fundamental principles of journalism: the confidentiality of sources. Many of the accusations flying around the global press are not fully proven, and there are still many things we don’t know. What is not being disputed is that the USA’s National Security Agency has been secretly and indiscriminately harvesting phone metadata from at least one domestic phone company. If the most serious claims are true, however, they’ve also been collecting everything they can from Microsoft, Google, Yahoo, Facebook, AOL, Skype, and more – with the possible co-operation of the companies themselves. These firms are the very backbone of the web, and when any journalist sees the list she must ask herself: who hasn’t used one of these services in the course of their work? As a freelancer working on the cheap, I regularly use Skype to interview overseas contacts, and I know from experience that The Times and Sunday Times use Google Apps (a paid-for service which outsources email storage and handling to Gmail – and whose value is obvious to anyone who has ever tried to grapple with outdated clients like Squirrelmail). Another future PRISM partner was Dropbox, the free cloud storage provider. When I worked for EastLondonLines, the news website run by our Ethics Chair, Angela Phillips, we used dropbox to hold all our stories, notes, and pictures – and I personally still use it for most of my files. We might well snort and ask what interest any government could possibly have in the deeds of a local news website in London. We might also claim- we who keep all our notes  in readiness to present them to a court if necessary – that we have nothing to hide. And, clearly, when we’re contacting highly sensitive sources, we will probably be more circumspect than simply firing out emails. But the fact remains that most of our routine internet use is done through American companies – and we now know that makes it vulnerable to government access in secret and across national borders, without any heed for sovereignty. This is a dangerous situation. We don’t need to have any particular antipathy towards the US government to object to this because the government in question is less important than the principle. If journalists are to hold power to account then sources need to be able to count on their protection with utmost certainty. They can’t do that if any communication with journalists is liable to be snooped on by the very powers they wish to challenge – indeed, by any government whatsoever. Investigative journalism cannot operate if it can’t guarantee secrecy to its sources. The Committee for the Protection of Journalism has documented numerous cases around the world where broad surveillance has impeded the practice of journalism, or led to the persecution of working journalists. Many more censorship and journalistic watchdogs are worried about the precedent this sets. The risk is that the sheer fear and intimidation caused by such programmes might make it impossible for American sources to speak to even foreign journalists. As it happens, the USA is not above this kind of behaviour. In 2010, Fox News reporter James Rosen was put under intense federal surveillance and labelled a “co-conspirator” for publishing leaked reports about North Korean nuclear policy. Investigators from the Justice Department tracked his movements, gathered phone records and obtained warrants for his emails. As the Washington Post reported:

“Court documents in the Kim case reveal how deeply investigators explored the private communications of a working journalist — and raise the question of how often journalists have been investigated as closely as Rosen was in 2010. The case also raises new concerns among critics of government secrecy about the possible stifling effect of these investigations on a critical element of press freedom: the exchange of information between reporters and their sources.”

Then, this year, the Justice Department secretly obtained two months worth of phone records for the Associated Press as part of their attempt to track down a leak about anti-terrorist operations in Yemen. In a letter to the US Attorney General, AP president Gary Pruitt protested:

 “These records potentially reveal communications with confidential sources across all of the newsgathering activities undertaken by the AP during a two-month period, provide a road map to AP’s newsgathering operations, and disclose information about AP’s activities and operations that the government has no conceivable right to know.”

And last week, Glenn Greenwald – one of the journalists behind the PRISM scoop –  told Piers Morgan: “the Obama administration has been very aggressive about bullying and threatening anybody who thinks about exposing it, or writing about it, or even doing journalism about it.” Ultimately, however, it is not journalists who are at risk so much as the whistleblowers themselves. In 2012, CIA agent John Kirakou was prosecuted for leaking information about his country’s torture programme to members of the press. In 2010, NSA agent Thomas Drake was charged with providing classified information to a newspaper. Numerous such incidents attest to what the Atlantic called a “war on whistleblowers”, The Nation “Obama’s crackdown”, and the New Yorker “a tale of political reprisal”. By spying on journalists, governments can track down and persecute even the most confidential sources – making others too scared to come forwards and cutting off investigative journalism at its wellspring without ever appearing to attack the press itself. No wonder that Edward Snowden did not choose to take his story to an established American newspaper. In the grip of the modern 24-hour news cycle, journalists are growing ironically dependent on the very internet so often blamed for their crisis. And why shouldn’t they be? Web tools from email and cloud storage to Twitter and the Companies House WebCheck open up new and powerful possibilities for every reporter. But it’s now very clear – if it wasn’t already – that the more journalists rely on the internet, the more they expose themselves and their sources to surveillance. Ideally these programmes should end, or at least be reined in and opened up to public scrutiny. But with US cell phone companies receiving 1.3 million requests for subscriber information in 2011, and much of the authority behind them vested in secret legal interpretations by secret courts, that may not happen any time soon. In the meantime, journalists must start considering alternative ways to communicate with their sources. Otherwise we risk transforming at any moment from seekers of truth and protectors of the public interest to unwitting plague carriers, bearing the curse of the law to anyone brave enough to speak to us.