Government Spying Undermines Media Freedom and Right to Counsel, ACLU-Human Rights Watch Shows

July 28, 2014

FOR IMMEDIATE RELEASE

CONTACT: media@aclu.org

WASHINGTON – Large-scale U.S. surveillance is seriously hampering U.S.-based journalists and lawyers in their work, the American Civil Liberties Union and Human Rights Watch said in a joint report released today. Surveillance is undermining media freedom and the right to counsel, and ultimately obstructing the American people's ability to hold their government to account, the groups said.

The 120-page report, "With Liberty to Monitor All: How Large-Scale U.S. Surveillance is Harming Journalism, Law, and American Democracy," is based on extensive interviews with dozens of journalists, lawyers, and senior U.S. government officials. It documents how national security journalists and lawyers are adopting elaborate steps or otherwise modifying their practices to keep communications, sources, and other confidential information secure in light of revelations of unprecedented U.S. government surveillance of electronic communications and transactions. The report finds that government surveillance and secrecy are undermining press freedom, the public's right to information, and the right to counsel, all human rights essential to a healthy democracy.

"The work of journalists and lawyers is central to our democracy," said report author Alex Sinha, Aryeh Neier Fellow at Human Rights Watch and the American Civil Liberties Union. "When their work suffers, so do we."

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The Impact of Surveillance on Journalism

The report is drawn from interviews with some 50 journalists covering intelligence, national security, and law enforcement for outlets including the New York Times, the Associated Press, ABC, and NPR.

The U.S. has long held itself out as a global leader on media freedom. However, journalists interviewed for the report are finding that surveillance is harming their ability to report on matters of great public concern.

Surveillance has magnified existing concerns among journalists and their sources over the administration's crackdown on leaks. The crackdown includes new restrictions on contact between intelligence officials and the media, an increase in leak prosecutions, and the Insider Threat Program, which requires federal officials to report one another for "suspicious" behavior that might betray an intention to leak information.

Journalists interviewed for the report said that surveillance intimidates sources, making them more hesitant to discuss even unclassified issues of public concern. The sources fear they could lose their security clearances, be fired, or – in the worst case – come under criminal investigation.

"People are increasingly scared to talk about anything," observed one Pulitzer Prize winner, including unclassified matters that are of legitimate public concern.

Many journalists described adopting elaborate techniques in an environment of tremendous uncertainty in an effort to protect evidence of their interaction with sources. The techniques ranged from using encryption and air-gapped computers (which stay completely isolated from unsecured networks, including the Internet), to communicating with sources through disposable "burner" phones, to abandoning electronic communications altogether. Those cumbersome new techniques are slowing down reporters in their pursuit of increasingly skittish sources, resulting in less information reaching the public.

This situation has a direct effect on the public's ability to obtain important information about government activities, and on the ability of the media to serve as a check on government, Human Rights Watch and the ACLU found.

Journalists expressed concern that, rather than being treated as essential checks on government and partners in ensuring a healthy democratic debate, they may be viewed as suspect for doing their jobs. One prominent journalist summed up what many seemed to be feeling: "I don't want the government to force me to act like a spy. I'm not a spy; I'm a journalist."

The Impact of Surveillance on the Practice of Law

For lawyers, large-scale surveillance has created concerns about their ability to meet their professional responsibilities to maintain confidentiality of information related to their clients. Failure to meet those responsibilities can result in discipline through professional organizations, or even lawsuits.

Lawyers also rely on the free exchange of information with their clients to build trust and develop legal strategy. Concerns over government surveillance are making it harder for attorneys – especially, but not exclusively, defense attorneys – to build trust with their clients or protect their legal strategies. Both problems corrode the ability of lawyers to represent their clients effectively.

As with the journalists, lawyers increasingly feel pressure to adopt strategies to avoid leaving a digital trail that could be monitored. Some use burner phones, others seek out technologies designed to provide security, and still others reported traveling more for in-person meetings. Like journalists, some feel frustrated, and even offended, that they are in this situation. "I'll be damned if I have to start acting like a drug dealer in order to protect my client's confidentiality," said one.

The result of the anxieties over confidentiality is the erosion of the right to counsel, a pillar of procedural justice under human rights law and the U.S. Constitution, Human Rights Watch and the ACLU found.

The U.S. has an obligation to protect national security, and under human rights standards, it may engage in surveillance to that end, but only to the extent that surveillance is lawful, necessary, and proportionate, and the least intrusive means to protect against tangible threats to national security. Many existing surveillance programs are indiscriminate or overbroad, and threaten freedom of expression, the right to counsel, and the public's ability to hold its government to account. Programs allowing surveillance of non- U.S. persons offer even fewer protections. The U.S. should reform its surveillance programs to ensure that they are targeted and legitimate, increase transparency around national security and surveillance matters, and take steps for better protection of whistleblowers and the media, Human Rights Watch and the ACLU said.

"The U.S. holds itself out as a model of freedom and democracy, but its own surveillance programs are threatening the values it claims to represent," Sinha said. "The U.S. should genuinely confront the fact that its massive surveillance programs are damaging many critically important rights."

The report and a video featuring interviews with journalists and the report author are at:

https://aclu.org/liberty-monitor-all

Additional Quotes From Journalists

Journalists expressed a number of concerns related to their work. On the current reporting environment:

"Every national security reporter I know would say that the atmosphere in which professional reporters seek insight into policy failures [and] bad military decisions is just much tougher and much chillier."

– Steve Coll, staff writer for The New Yorker and dean of the Graduate School of Journalism at Columbia University

"[The landscape] got worse significantly after the Snowden documents came into circulation. If you suspected the government had the capability to do mass surveillance, you found out it was certainly true."

– Peter Maass, senior writer for The Intercept

"It's a terrible time to be covering government."

– Tom Gjelten, veteran correspondent for National Public Radio

"A year ago, in our line of business, we were more worried about the Chinese government snooping to get an edge by collecting what we weren't reporting. Now it's a distant second to our own government."

– National security reporter

On sources:

"[Before] you'd start pulling the curtain back and more people would come forward. Many fewer people are coming forward now."

– Jim Asher, Washington bureau chief for McClatchy

"We're not able to do our jobs if sources are in danger."

– National security reporter

"[T]he government's ability to find the source will only get better."

– Peter Finn, national security editor for the Washington Post

On the effects for their coverage:

"Stories that could have been done have a much higher uphill climb."

– Steve Engelberg, editor-in-chief of ProPublica

"I could do double the work if I weren't spending so much effort on encryption and a secure workflow between networked and air-gapped machines."

– Barton Gellman, senior fellow at The Century Foundation

On the value of their work:

"National security journalism is especially important for a functioning, democratically accountable system."

– Charlie Savage, reporter for the New York Times

"What makes government better is our work exposing information. It's not just that it's harder for me to do my job, though it is. It [also] makes the country less safe. Institutions work less well, and [it] increases the risk of corruption…. Secrecy works against all of us."

– Dana Priest, reporter for the Washington Post

"I don't want the government to force me to act like a spy. I'm not a spy; I'm a journalist."

– Adam Goldman, national security reporter for the Washington Post

Additional Quotes from Lawyers

On the need to take new protective measures:

"My take is that lawyers – especially those with clients whose legal matters may be of interest to the government – have legitimate concerns about government surveillance."

– Andrew Perlman, professor at Suffolk University Law School and former chief reporter of the American Bar Association's Commission on Ethics 20/20

"Even if you aren't doing sensitive work, you should be concerned about how much [information] is gathered."

– Jonathan Hafetz, associate professor of law at Seton Hall University School of Law

"We are fearful that our communications with witnesses abroad are monitored [and thus that attempts to build our case] might put people in harm's way."

– Jason Wright, a member of the U.S. Army's Judge Advocate General's Corps who does work before the Guantanamo commissions

"Every person you're touching, you're potentially poisoning."

– Ahmed Ghappour, law professor at University of California, Hastings College of the Law, and director of the Liberty, Security, and Technology Clinic

"Only a foolish person understands that your communications can be intercepted and does nothing about that. It's no different from locking your office door."

– Rob Feitel, defense attorney specializing in complex and international drug cases, and former federal prosecutor

"[It] won't be long before some bar association says you can't … send unencrypted emails."

– James Connell III, a defense attorney for one of the Guantanamo detainees

On how it feels to adopt their new measures:

"I'll be damned if I have to start acting like a drug dealer in order to protect my client's confidentiality."

– Tom Durkin, national security defense attorney

"Nobody practiced law like this 15 years ago unless you were a crook."

– Linda Moreno, national security defense attorney

"I don't want to look like I'm doing something illegal."

– James Connell III, a defense attorney for one of the Guantanamo detainees

On reassuring clients:

"It used to be that I could assure [clients] that the government lacked the resources to focus on them. But these days it does have the resources – it can focus on everyone."

– Ron Kuby, criminal defense and civil rights attorney

"If your clients see you uncomfortable communicating, they may resist telling you everything. It just chills the conversation."

– A federal defender