By Paul Rosenzweig, The George Washington University Law School
What is the proper role of the news media in covering government intelligence collection and surveillance activities? And, what is expected of the news media and its changing norms of reporting? Clearly, in America, there is a longstanding ideal that advocates for the freedom of the press, the right enshrined in the First Amendment to the Constitution. In a landmark litigation from an earlier era, a series of rules were developed that favor allowing the news media to publish classified information. Let’s explore.
The Changing Norms of Reporting
A traditional view has been to regard the news media as a watchdog, ferreting out wrongdoing. But why is that? What are the journalists expected to do? Is it simply a means of ensuring transparency of what the government does? Or do you think that this extended privilege has a more limited but perhaps more important role to aid in checking malfeasance, misfeasance, or nonfeasance by government officials?
A fair assessment is that the role of the news media is changing before people’s eyes. The Rosen case—and several other cases—reflect the changing norms of reporting on national security. As Fred Kaplan—the Edward R. Murrow fellow at the Council on Foreign Relations—wrote:
Just because the government is doing something in secret, and just because a leaker tells someone like me about it, that doesn’t necessarily mean it should see the light of day. This is especially so if the secret activity in question doesn’t break laws, expose deceit, kill people, or violate basic decency.
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Reporting by The New York Times
But the balance clearly seems to be shifting toward greater transparency. After the controversy erupted over James Rosen’s newsgathering methods, The New York Times reported on what it described as a National Security Agency breach of Chinese computers.
The report suggested that the NSA had inserted a program into Chinese computers, giving it access to official communications—something that, at least on its face, seems like precisely what we want the NSA to be doing. More to the point, as Harvard Law professor Jack Goldsmith wrote:
The New York Times report shows how much publication norms have changed in recent years. This is a story about the technical means and methods of surveillance against foreign countries, including our military adversaries, Russia and China. I imagine that the reporters would say if they did not report this story, someone else will. If these are the arguments, it’s hard to see what NSA secrets The New York Times would not publish.
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Why Did Reporting Change?
It is closely tied to two other phenomena that Goldsmith identifies. The first is the democratization of newsgathering, and the second is the expansion of the surveillance state. In a world where everyone can blog, almost anyone can become a journalist.
Where before mainstream journalists might refrain from publishing secrets that they thought should not see the light of day, now they know that their forbearance is likely for naught. Even if they refuse to publish the information, someone somewhere else will likely, eventually find and publish it.
The growing degree to which government surveillance is becoming part of our daily lives is leading some to resist that expansion. They push back hard against what they see as overreaching and sometimes get to the point where they think that virtually any form of surveillance is newsworthy precisely because so much of it is new, different, and possibly threatening to civil liberties.
This is a transcript from the video series The Surveillance State: Big Data, Freedom, and You. Watch it now, on Wondrium.
How the US Government React to Change in Reporting
Some say that news is moving more generally in precisely the opposite direction—publishing less rather than more of what resides in the area of secrecy and that belongs in the realm of public interest; beyond that is secondhand refinements of indiscriminate information dumps provided by Snowden and WikiLeaks.
In this view, many secrets that traditionally were ferreted out—from those in small-time politics to very large-scale settings—are likely to go untouched. So, how should the US government react to these changing norms? Late in his presidency, Barack Obama defined what he viewed as the core conflicts and challenges:
As commander in chief, I believe we must keep information secret that protects our operations and our people in the field. To do so, we must enforce consequences for those who break the law and breach their commitment to protect classified information. But a free press is also essential for our democracy. That’s who we are, and I’m troubled by the possibility that leak investigations may chill the investigative journalism that holds the government accountable. Journalists should not be at legal risk for doing their jobs. Our focus must be on those who break the law.
Notwithstanding this nod toward balance, Obama’s administration made significant efforts to prosecute leakers as a way of deterring leaks. Indeed, it is fair to say that the Obama administration was more aggressive than prior administrations, having brought at least seven such prosecutions during the president’s term of office.
Common Questions about Changing Norms of Reporting on National Security
The New York Times reported a story about the National Security Agency breaching Chinese computers. These reports show the changing norms of reporting in recent years. In other words, the reporter says that if I don’t report this story, someone else will.
According to Jack Goldsmith, two phenomena can affect the changing norms of reporting. One of these phenomena is the democratization of information and newsgathering, and the other is the expansion of government surveillance.
The government should react to the changing norms of reporting by standing against those who break the law by revealing classified information. On the other hand, the government must support the free press as well as journalists who are doing their job right.
