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Journalists and Attorneys Are Increasingly Adopting Spycraft

A Human Rights Watch/ACLU report says US mass surveillance policies could do "long-term damage to the fabric of democracy."
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This article originally appeared on VICE Canada.

The US Government's mass surveillance programs are chilling the rights of journalists and lawyers, and weakening democratic institutions in the process, according to a new report authored by Human Rights Watch and the ACLU. The report found that journalists' sources are either drying up or talking less, and attorneys are increasingly concerned about their ability to keep privileged client-information private.


As a result, long-held stated US values like freedom of expression, freedom of association, and freedom from illegal government intrusion are in danger, according to the report. “[T]oday those freedoms are very much under threat due to the government’s own policies concerning secrecy, leak prevention, and officials’ contact with the media, combined with large-scale surveillance programs,” writes Alex Sinha, author of the report. “If the US fails to address these concerns promptly and effectively, it could do serious, long-term damage to the fabric of democracy in the country.”

Among the recommendations the report puts forward are that the US Government “narrow the scope of surveillance authorities,” “disclose additional information about surveillance programs to the public,” and “enhance protections for national-security whistleblowers.”

The report comes after more than a year of the closest public scrutiny the US intelligence community has faced in a generation, following the leaks by former NSA-contractor Edward Snowden. Though the Snowden revelations have sparked international criticism and the US mass surveillance programs are deeply unpopular in the rest of the world, reform efforts by Congress and the Obama administration have largely been muted.

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A bill purportedly meant to limit bulk surveillance, known as the “USA Freedom Act,” passed the House in May but was so watered down that many initial backers withdrew their support. Just last week, Senator Patrick Leahy (D-VT), introduced a new, stricter version of the bill in the Senate that seems to have received at least limited support from some civil liberties groups.


“It’s encouraging to hear that the Senate may be considering a strong version of the USA FREEDOM Act—one that might ban the bulk collection of metadata under Section 215,” Sinha tells VICE in an email. “That would be a good step forward, a way to alleviate some (though by no means all) of the concerns journalists and attorneys expressed.”

The report argues that not enough attention has been paid to the harm done to journalists and attorneys who are subject to surveillance—or rationally believe they could be. Sinha and those he worked with interviewed 92 people, including reporters, attorneys, and five former or current government officials.

Of the journalists quoted, many describe taking extraordinary measures to protect their sources from any potential leak investigations. “I was warned by someone at the Pentagon that it was easy to track my calls because I used the same number all the time,” one anonymous national security journalist told Sinha. That journalist now uses burners—mobile phones meant to be used only a handful of times—to avoid detection. Many other reporters Sinha interviewed have adopted the practice as well.

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Other tactics to protect sources' anonymity include calling “a large number of possible sources before a story comes out in order to obscure the identities of those who actually provided information,” or “booking 'fake' travel plans” to throw off any potential future investigators.


Many of the journalists quoted in the report also said they used some form of encryption to protect the content of their emails—though not information about who sent the email to whom and when. And, as the report sates, “it is far from clear how effective these methods are in the long run.”

Still others took a completely opposite approach, worrying that using encryption could actually raise suspicion, and that if the NSA or any other government agency wants to get information from a journalist there's little to be done to stop them. “If the government wants to get you, they will,” the Washington Post's Adam Goldman is quoted as saying.

Goldman is quoted elsewhere in the report as having a negative reaction to the idea of adopting spycraft as a reporter. “I don’t want the government to force me to act like a spy. I’m not a spy; I’m a journalist.”

Beyond broad surreptitious surveillance, the report also criticizes the Obama administration's policies of limiting interaction between intelligence officials and journalists. One example, called the “Insider Threat Program” encourages federal employees to report any colleagues they suspect of leaking information. Originally reported by McClatchy, the program apparently gives management in an array of federal agencies – including the Peace Corps and Department of Agriculture – “wide latitude” in determining who qualifies as a so-called threat. “Even inside an agency, one manager’s disgruntled employee might become another’s threat to national security,” McClatchy reported.

Other administration policies have similarly constricted the back and forth between government officials and the press. A directive issued in March 2014 by Director of National Intelligence James Clapper “prohibit[ed] intelligence community employees from all unauthorized contact with the press and requiring employees to report unauthorized or unintentional press contact on certain topics.”

As much as the Obama administration has cracked down on unauthorized leaks, they rely on so-called “background briefings”—where senior officials can be quoted but not identified by name—constantly. At a recent press conference, White House Press Secretary Josh Earnest criticized a report in the Washington Post for relying to heavily on anonymous sources. Members of the press corps pushed back, reminding Earnest that the White House had scheduled a background briefing that very afternoon.

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Via Flickr user Elvert Barnes