By Paul Rosenzweig, The George Washington University Law School
Serious journalists, when studying cybersecurity, should know that all of the electronic tools of their trade—cell phones, email, Web searches, and the like—are evidentiary snares. And that if they are truly going to protect their confidential sources, they need to go old school, back to the days of meeting in a darkened garage to talk without a cell phone or a recorder anywhere nearby.
Non-traditional News Media
The non-traditional press is epitomized by the likes of Julian Assange and WikiLeaks. In some ways, the non-traditional news media is not terribly different from traditional media. It reveals and sometimes comments on previously non-public information.
But such practitioners might also be more adversarial. Consequently, they might also be less likely to exercise restraint and more likely to pursue transparency as an absolute value.
So, for now, the only thing that limits federal surveillance of the news media is its own self-restraint. Under a great deal of public pressure after the case involving Rosen and the State Department contractor, the Justice Department actually adopted a new policy.
This is a transcript from the video series The Surveillance State: Big Data, Freedom, and You. Watch it now, on Wondrium.
The New Policy of the Justice Department
In summary, this policy makes clear that the government will provide protection to members of the news media from certain law enforcement tools—whether criminal or civil—that might unreasonably impair ordinary newsgathering activities.
The policy says that subpoenas and search warrants directed at members of the news media are “extraordinary measures, not standard investigative practices,” and that they must be authorized by the attorney general himself.
In criminal cases, the information sought by the government must be essential to a successful investigation and prosecution, and prosecutors must make all reasonable attempts to obtain the information from alternative, non-media sources.
Now, all that sounds well and good, but since the attorney general issues the guidelines and interprets them, it means that the president’s chief legal officer is judge and jury when it comes to the appropriateness of news media scrutiny.
Learn more about tracking data via geolocation.
Laura Poitras
If you see the development of greater surveillance methods and technologies as strengthening the hand of government intrusion and abuse, it’s likely that you will welcome the transparency advocates. If you fear the threat to national security they might pose, you won’t.
The filmmaker and journalist Laura Poitras was both facilitator and beneficiary of the former National Security Agency subcontractor Edward Snowden, who became a polarizing figure around the world for absconding with US secrets and dolloping them out to select news organizations.
Poitras won an Academy Award for her documentary movie about Snowden, Citizen Four. In her Oscar acceptance speech, she said, “When the most important decisions being made that affect all of us are being made in secrecy, we lose our ability to check the powers in control.”
Glenn Greenwald and ‘The Intercept‘
The serious journalist and constitutional lawyer, Glenn Greenwald, helped the UK newspaper, The Guardian, win a Pulitzer Prize for public service based upon his reporting about the National Security Agency—which stemmed in part from the Snowden leaks. Greenwald went on to co-found the digital news imprint known as The Intercept.
In particular, the digital news publication reported that the TSA had sent its staff a notice about a type of explosive that the agency’s security filters weren’t equipped to detect. The closest The Intercept could come to formulating a justification for publishing the classified material—the revelation of which could endanger the traveling public—was that there was a bureaucratic CYA-type nature to the disclosure.
In other words, the TSA had a problem for which it didn’t have a technological solution and wasn’t likely to in the near future. At a minimum, the TSA wanted everyone to know that it knew so that if something went wrong, according to The Intercept, it wouldn’t be charged with incompetence, just technical inadequacy.
Learn more about the benefits and challenges of anonymity for individuals .
Taking Inspiration from Jack Goldsmith
Finally, it’s worth asking how the government should respond to its own inability to keep secrets. According to a quote from Jack Goldsmith from Harvard, who—in a speech about the problem of how the intelligence community is publicly perceived in a post-Snowden era—outlined several principles to guide the intelligence community. Here’s some of what he said:
First, fully absorb and adhere to the front-page rule—that is, the rule that asks, ‘How will this look on the front page of the paper?’ Second, stop jeopardizing vital credibility through exaggerated claims about national security harms of disclosure. In other words, don’t say that every leak is a national catastrophe. And third, rethink the pervasive resistance to public disclosure of any aspect of an intelligence operation, including things like the legal rationale for such operations.
As Goldsmith correctly points out, if the debate about surveillance and covert action is going to occur in public—and in this age of new media, the debate is, more than it ever was before, a public one—then public policymakers, including the intelligence community, must fully participate in that debate.
Common Questions about Serious Journalists and Epitomized Non-traditional Press
When studying cybersecurity, serious journalists must keep in mind that all their communication and electronic devices, such as phones and emails, are all snares. Hence, journalists must find different ways to keep their confidential information from getting disclosed.
Laura Poitras is a filmmaker and journalist who was the facilitator and beneficiary of Edward Snowden, the former National Security Agency subcontractor. She made a documentary movie about Snowden and won an Oscar.
Glenn Greenwald is a journalist and constitutional lawyer. The Guardian newspaper won a Pulitzer Prize because of Glenn’s reporting about the National Security Agency. He also co-founded a digital news imprint called The Intercept.
