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A Chilling Effect on Newsgathering

As more and more details about the mass surveillance activities surface, various news organizations and journalists express concern about the effect ubiquitous eavesdropping has on journalism. Although research and articles are shedding some light on the effect spying has on our society and journalism, the disclosures seem to be far from being over and far more research needs to be done. One thing can be said already though: The little we know is reason for concern.

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In an earlier blog entry from September 6th, I discussed the importance of news media in a democratic society and gave some examples of how institutions agencies have attempted to intimidate journalists. My article from September  29th shows why mass surveillance concerns us all. In this article, I will specifically enlarge upon the consequences of mass surveillance on journalism.

Needless to say, hampering a democracy’s press is hampering  democracy itself. In a public comment to the Review Group on Intelligence and Communication Technologies convened to President Obama, a group of scholars, journalists and researchers from Columbia Journalism School and the MIT Center for Civic Media say that mass surveillance “presents a grave threat to the effectiveness of an independent press.” The 15-page letter argues that there is a “discrepancy” between the NSA’s eavesdropping activities and the existing law and policy designed to protect the confidentiality of journalist-source communications. What’s more, a “climate of secrecy” established by mass surveillance methods is itself “harmful” to journalism, as sources aren’t able to find out when they might be spied on, or how “intercepted information might be used against them.” As the letter shows, the NSA does not have to adhere to the policy of the Department of Justice. The double standard is not only “intolerable”, but endangers the communications between journalists and their source. The review group calls for “one set of rules.”

Furthermore, the authors reject the logic of the Foreign Intelligence Surveillance Court, which asserts that collecting information on everyone is no different than doing the same on specific individuals. “The surveillance of essentially everyone has effects far beyond the surveillance of journalists alone. […] For a free press to function we must also protect the means of communicating with a journalist.” The comment also says that sources have become nervous about talking to reporters, as reported by journalists from various news organizations including the New York Times and the Washington Post. Summing their appeal up, the groups states that “mass surveillance is a serious threat to the constitutionally protected function of a free press, and therefore to democracy itself, because it impinges on the ability and confidence of every possible source who might talk to a journalist.” The possibility for journalists’ communication to be monitored everywhere and anytime poses new challenges for our profession.

At an online news association conference in late October in Atlanta, media professionals were told that they needed to learn about secure and safe communication, meaning they have to use encryption and good security practices. Jonathan Stray from Columbia University reminded participants that while encryption is vital, it doesn’t protect the metadata, i.e. sender, recipient, time, and more. Stray called journalists “targets” who are working in a “high-risk” profession, while media lawyer Nabiha Syed said the bigger problem is that we are missing “clear and transparent procedures that protect right.”

Glenn Greenwald & partner Miranda

Glenn Greenwald & partner Miranda

On August 18, David Miranda, partner of Guardian interviewer of whistleblower Edward Snowden Glenn Greenwald, was detained for nine hours and questioned at Heathrow airport. A controversial British law, which applies only at airports, ports and border areas, allows officers to stop, search, question and detain individuals. Miranda was released, but officials confiscated electronics equipment including his mobile phone, laptop, camera, memory sticks, DVDs and games consoles.

In the middle of October, a British Parliamentary committee announced it would investigate The Guardian’s reporting on Edward Snowden’s NSA leaks as part of a broader counterterrorism inquiry, while a poll found that more British citizens oppose the whistleblower’s leaks than favor them. At the same time, however, a Pew  Research poll shows that the public values the watchdog role of the of the press more today than before the Snowden leaks. In an August survey, seven in 10 agreed that news organizations “keep leaders from doing things that shouldn’t be done”, up from a low of 55 percent a decade ago.

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Former Independent editor Chris Blackhurst criticized The Guardian’s publication of the leaks, arguing that they’re not much of a story and that if government authorities contend that they’re not in the public interest, “who am I…to disbelieve them?” Glenn Greenwald responded in an article on his own, attempting to refute Blackhurst’s arguments. Greenwald said Blackhurst’s opinion is a “predominant mindset among many in the media class.” Moreover, he said that that  when journalists do talk this way, “they do us a service, as it lays so vividly bare just how wide the gap is between the claimed function of establishment journalists and the actual role they fulfill.”

Blackhurst's article in The Independent

Blackhurst’s article in The Independent

On October 25th, the N.S.A.’s director, General Keith Alexander, accused journalists of “selling” his agency’s documents and called for an end to the steady stream of public disclosures of secrets. In a roughly 30-minute interview with the Defense Department’s “Armed With Science” blog, Alexander says “it’s wrong that newspaper reporters have all these documents, the 50,000 – whatever they have and are selling them and giving them out as if these – you know it just doesn’t make sense.” He added: “We ought to come up with a way of stopping it.” It doesn’t get much more obvious that this does not comply with the First Amendment.

The Snowden revelations have sent a chill through those reporters covering national security issues. If the NSA can easily gather details about who a reporter phoned or emailed, that sends a signal to whistleblowers that their anonymity can no longer be protected. David Sirota, columnist, journalist and author, shows in his article Obama’s war on journalism how the U.S. President prevented a Yemeni journalist from being pardoned by calling Yemen’s leader. After Abdulelah Haider Shaye exposed his government’s coverup of a US missile strike that reportedly killed “dozens”, he was sentenced to five year in prison. In Sirota’s article, New York Times media correspondent David Carr says that “suggesting that there is a war on the press is less a hyperbole than simple math.”

The CEO of the Associated Press Gary Pruitt recently said that there has been a “chilling effect on newsgathering“.

On the plus side, the disclosure seem to have animated a plethora of media outlets to do in-depth reports and dedicate many of their staff and resources to the effort to inform the public. To which extent they feel genuinely  convinced that this topic deserves all the attention or if they merely jumped on the bandwagon is, I believe, secondary, because all the reports enable readers and viewers to really educate themselves about the surveillance activities. Another positive development, which is in keeping with the extensive coverage, is the international debate Snowden’s leaks have sparked.

However, there seem to be grave detrimental effects on journalism as governments and agencies around the world fear that their inner-most secrets may be revealed. I believe we are at crossroads, both as a society and journalism. Will the vast majority of journalists, sources, and potential whistleblowers be too afraid to speak up? Or will courageous, idealistic men and women not allow governments and institutions to intimidate them and emulate people like Edward Snowden and Glenn Greenwald? It’s up to every single one of us.

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Why Mass Surveillance Concerns Us All

Imagine our so-called democracy converts to a police state in which a totalitarian government uses universal surveillance to control us and be able to follow our every step. Imagine a world in which the definition of “appropriate” thought and behavior becomes so narrow that even the most pedantic norm violations are met with exclusion or punishment. Imagine a place devoid of privacy and solitude because of absolute, 24/7 surveillance. Although we are far away from an Orwellian state, this summer’s disclosures should not only be a warning for all of us but an plea to think about what kind of future we want to live in.

A considerable number of people seem to exhibit a certain apathy about possible negative repercussions mass surveillance, eavesdropping and data mining can have. Granted, the matter is complex and not very palpable; Technical terms and nontransparent procedures make it hard to grasp, which may cause people to feel like they cannot do anything about it and may help them come to terms with it. People are more likely to take issue when other civil liberties like the right of association were hampered. Consequently, you might not think that you should be concerned about the processes because they supposedly do not affect you or appear to be irrelevant. Yet I firmly believe that we have to understand the implications on our privacy and find ways to protect it, for if this matter does not concern you, I don’t know what does.

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The recent disclosures about the scope of government surveillance are staggering. In my article about the latest revelations, I showed how the National Security Agency and other government agencies are capable of cracking the encryption that “guards global commerce and banking systems, protects sensitive data like trade secrets and medical records, and automatically secures the emails, web searches, internet chats and phone calls of Americans and others around the world.” We are not only talking about metadata, but the content of communication and confidential information. I find it extremely worrying that every time you leave a trace in the digital realm in one way, shape or form, it is possible that somewhere, somebody from the government knows exactly what you are doing.

With millions of people being monitored, the question is: Who is going to look through these massive amounts of data and accurately distinguish an innocent citizen from a criminal or a terrorist? Civil rights advocate Nadine Strossen says that “we’re burying any potentially relevant leads in data that nobody has been able to search through.” Even machines are not apt for this task. Imagine an academic writing a research paper on terrorism, searching for “Al-Qaeda”, “airplane” and “bombs” on Google in the process. Now imagine a member of a terrorist organization doing the same. How is a machine supposed to know the difference between these two entirely different motives?

Everybody has a right to privacy. By that I do not mean that everybody should have a right for privacy, or that privacy is simply something we take for granted; I am talking about a fundamental freedom that is a part of the constitution of many countries around the world. That being said, the eavesdropping is not merely worrisome, but in fact unlawful. In this country, the 4th Amendment grants every citizen the right to privacy against governmental intrusion. Why is the N.S.A. able to clandestinely access our digital information and belongings when real-world law enforcement needs written permission in form of a warrant from a court of law to search a home? Strossen says that there should not only be “an opportunity to challenge the warrant process”, but also individualized suspicion, because “the 4th Amendment approach of individualized suspicion protects individual liberties.”

During a press conference in Berlin on June 19th this summer, President Obama said that the U.S. surveillance program is a “circumscribed, narrow system, directed at us […], and all of it is done under the oversight of the courts.” Reality speaks a different language. Besides, the scope of the surveillance would make it virtually impossible to get permission from a court every time an online warrant was needed. Breaking encryption and snaring people’s conversations ought to require a warrant just like the one that is needed for a house search. Our government should secure and protect our inherent rights, which is the very reason we created the government in the first place. Right now it is clearly not living up to that expectation.

Some of you might say: “If you’ve got nothing to hide, you’ve got nothing to fear”, meaning that data mining and surveillance programs do not threaten privacy unless they discover illegal activities. First of all, what is right and what is wrong is often not clearly distinguishable. Opinions or actions can be incorrectly interpreted and tarnish somebody’s reputation, particularly if data falls in the hands of a third party. The example of the academic I gave earlier illustrates this well. Moreover, the autonomy and aspects of human dignity that the right to privacy protects are vital to the development of individuality and consciousness of individual choice in life, hence restrictions on privacy can have severe repercussions on individuals.

If you still aren’t concerned, consider this: Surveillance leads to “heightened levels of stress, fatigue and anxiety”, according to an online article on theguardian.com. It also “reduces performance and our sense of personal control.” When faced with threats such as terrorism, most citizens presumably tolerate limited surveillance and accept the trade-off between our security and somebody else’s civil liberties. However, the mass surveillance measures, which were revealed over the last couple of months, show us that these measures are no longer only applied to terrorists but to all citizens. Therefore, the real trade-off is not between our security and the alleged terrorists’ civil liberties. It is between our rights and our security.

One worrisome implication of this trade is that citizen will probably lose trust in government and authorities. Spying on your own people creates an aura of general suspicion, leading to people becoming more susceptible to seemingly suspicious behaviors and potential threats as well as more distrust amongst them. Consequently, people are going to be more careful about what say or do, which might in turn severely hamper creativity and freedom of expression and will presumably result in less discourse and exchange of ideas. What’s more, the rift between the authorities and the citizens might become so big that a substantial number of people could actively oppose their governments. It has also been argued that mass surveillance can lead to conformity to social norms, which can stifle innovation, critical thinking, and originality.

surveillance-cameras

Not only can mass surveillance by the government be harmful for its citizens, it can also have detrimental effects on the government itself. In spite of possible positive consequences, reconnaissance can reduce leaders’ influence by nurturing resentment and distrust.

Furthermore, ubiquitous mass surveillance by the government can not only mean that you lose your privacy, but potentially your job. According to Strossen, the business community has come together with civil libertarians to protest against excessive eavesdropping, for business and technology experts are saying that due to lack of privacy it would be “foolish to do business with American companies because trade secrets aren’t going to be protected and you’re going to be vulnerable to cyber criminals.” For example, a report released by The Information Technology & Innovation Foundation says that “NSA surveillance could cost the U.S. cloud computing industry anywhere from $22 to $35 billion over the next three years”.

If everybody remained passive, the government would simply continue on its course because they are going to realize that even if they don’t obey the law they can get by with it. I firmly believe that it is everyone’s moral and ethical obligation to act in order to protect our civil liberties.

Taking steps to leave behind as small of an online footprint as possible is a first step, but if we want to curtail the power of the N.S.A and other agencies, we need to reach out to our representatives in Congress, sign petitions and join protest marches. Strossen, who teaches Law at New York Law School, says that everybody should be repealing provisions in the Patriot Act and the Foreign Intelligence Surveillance Act. According to Strossen, „a whole lot of reforms” are required to “bring the law back into line with the 4th Amendment.”

We need to remember that our democracy is not history in its final state but merely a temporarily secured form of existence, which is why we must all contribute to preserving our privacy if we want to enjoy this freedom ten years from now. If you don’t think standing up for something as vital as your privacy is worth it, why do you attend games to cheer your favorite sports team on? Why do you vote?

I sincerely hope that we can look back on this time in a generation or two and say that we showed the government that they cannot intrude our privacy without us taking action against it.

Big Brother is Watching You

When the latest disclosures of former intelligence analyst Edward Snowden were made public on September 5th, the world was able to see that the U.S. and British intelligence agencies are capable of cracking the encryption designed to provide online privacy and security. The British newspaper The Guardian, The New York Times and ProPublica reported the case.

As the NY Times points out, encryption “guards global commerce and banking systems, protects sensitive data like trade secrets and medical records, and automatically secures the emails, web searches, internet chats and phone calls of Americans and others around the world.” In a collaborative effort with the British counterpart, the Government Communications Headquarters, the National Security Agency has attempted to break into protected traffic of popular Internet companies such as Google, Facebook or Yahoo. After a summer of seemingly unexpected and unprecedented revelations about how the N.S.A. and other agencies were eavesdropping its own people and its allies, this is considered only the latest chapter in a series of worrisome events that undermine privacy and fundamental liberties.

Since its inception in 2000, the highly classified program code-named Bullrun has allowed the N.S.A. to hack into computers of companies to snare messages before they were encrypted. In spite of losing a public battle to insert its own “back door” in all encryption in the 1990s, the N.S.A. employed the method regardless. Nadine Strossen, professor of Law at New York Law School, was not surprised by this. Having been an advocate for civil liberties all her life, she, unlike the general public, was aware about not only the existence of the surveillance program, but also about its extent. “What’s really dismaying to me is that every time you think you have a victory, you don’t really because the agencies just go ahead do it anyway“, Strossen said.

There are numerous other examples similar to Bullrun that show how the N.S.A. is apparently not subject of adequate scrutiny by the government and seems to play by its own rules. In the aforementioned NY Times article, cryptographer Paul Kocher recalls how the N.S.A. “lost the heated national debate in the 1990s about inserting into all encryption a government back door called the Clipper Chip”. Although the use of the Clipper Chip was defeated, the N.S.A. clandestinely availed itself of the tool anyway. In 2002, the Bush administration initiated a program called Total Information Awareness, or T.I.A., which received a considerable amount of press in the wake of 9/11. According to a NY Times article from 2002, the underlying idea of the T.I.A. program is that “the best way to catch terrorists is to allow federal agencies to share information about American citizens and aliens that is currently stored in separate databases.” T.M.I. was a trailblazer of the massive domestic surveillance scheme called PRISM, which remained secret until early June this year, when information about the program, leaked by whistleblower Edward Snowden, was published by a number of media.

When the N.S.A. was founded 60 years ago, encryption was an obscure technology. Now that we are entering a “golden age of spying”, it has become “ubiquitous”, cryptograph Kocher declares. “Today they are conducting instant, total invasion of privacy with limited effort.”

In a statement, the American Civil Liberties Union said the actions will “further erode not only the United States’ reputation as a global champion of civil liberties and privacy but the economic competitiveness of its largest companies.”

So why were people surprised and outraged when they heard about the data mining program this summer? Strossen believes that the government doesn’t make it easy for us to find out. “The information flow between the people and the government is exactly the opposite of what it should be. We should know what our government is doing but we don’t because of undue secrecy and they shouldn’t know what we do but they do because of undue surveillance.”

Strossen also believes that the lack of knowledge has a lot to do with people not being aware of events in general and the fact that both the private sector and government have hidden information about the extent to which they are getting information. “At worst”, she denunciates, “they have outright lied to us”. When Director of National Intelligence James R. Clapper was asked in a hearing in the U.S. Senate earlier this year whether the N.S.A. was collecting data on millions of Americans, he replied: “not wittingly”.

Strossen, who served as president of the A.C.L.U. for 18 years, underscores the importance of civil liberties in a democratic society. “Without fundamental freedoms, in particular speech, thought, press, and association, which are all 1st amendment freedoms, we would not be able to advocate for any other right, we wouldn’t have access to information, we couldn’t communicate about our government and we couldn’t criticize it.” In other words: We wouldn’t have a functioning democracy.

Another worrisome development is how most people seem to be more concerned by surveillance and data mining by the private sector than they are by government. A September 5th survey by the Pew Research Center found out that internet users “are more intent on trying to mask their personal information from hackers, advertisers, friends and family members than they are trying to avoid observation by the government.”

Strossen, who has more than 250 published works, attributes this trend “to a believe or even hope on the part of most people that if the government is getting information it’s to protect me from terrorist attacks, whereas if the private sector is getting it, it’s just so they can market to me and I’m not interested in that.”

The latest revelations, however, clearly show how getting information from private companies is a vital part of intelligence agencies’ strategy. Although major tech firms like Microsoft and Google insist that they “provide user data to government only in accordance with the law”, the classified documents indicate that the agency’s success depends on the collaboration with the internet companies. According to one of the documents leaked by Snowden, who was granted temporary asylum in Russia after he had spent over one month at a Moscow airport, the N.S.A. spends more than $250 million a year on a project that allows it to “actively engage the U.S. and foreign IT industries to covertly influence and/or overtly leverage their commercial products’ designs” to make them “exploitable”.

Amid these alarming developments, Strossen insisted that the state of our civil liberties when it comes to surveillance is actually better now that the surreptitious proceedings have been confirmed. After this summer’s disclosures, one could think that surveillance has become worse over the last ten years. In the light of the fact that the eavesdropping has been going on for at least a decade, however, this doesn’t seem to be the case. Strossen says that although it has been “really bad, at least since 9/11”, at least it didn’t get worse. “The fact that we know about it thanks to whistleblowers such as Snowden is actually a big improvement.”

„To me, Snowden is a patriotic hero“, Strossen says, adding that she feels “much more encouraged today” than she was prior to the revelations.

What’s more, the Pew Research Center survey revealed that 86 percent of people surveyed have taken steps to remove or mask their digital footprints, while 55 percent say that they are worried about information available about them online, a figure that was only at 33 percent in 2009.

In spite of most people being relatively passive, the civil libertarian says that “there has been an amazing amount of uproar and criticism”. Moreover, quite a few people have “signed letters of protests and petitions.” The A.C.L.U. and other organizations have not only been gathering signatures online, but they have also been encouraging people to communicate with members of Congress, which led to a recent Congressional vote to cut back on government’s authority, which came very close to passing.

Strossen strongly believes that the government should strengthen whistleblower protection. Guarding journalists who are under attack is something she calls “essential”, because “if we do not have the basic information then there is no way we can fight back at any level.” Apart from that, Strossen supports several bills, which are pending in Congress right now, that cut back on the government’s power. She is also a fierce proponent of revising and reforming the Foreign Intelligence Surveillance Act, which became effective in 1978. Generally speaking, the activist argues that we need reforms that would “bring the law back into line with the 4th Amendment.”

Strossen, who has received Honorary Doctor of Law Degrees from six different universities and colleges, claims that there is no evidence that the N.S.A.’s “extraordinary new powers” have been “necessary or effective” in fighting terrorism. Her and other experts and authorities call the surveillance program “a colossal waste of money” and the data mining approach “junk science”. Furthermore, she believes that with congressional oversight and judicial review it is possible to channel the government’s resources more effectively. “We’re burying any potentially relevant leads in data that nobody has been able to search through” Strossen says, adding that the “problem is not lack of information but lack of ability to analyze and coordinate information.”

A Real Test For Our Profession

After a summer whose number one topic in the news was how the National Security Agency and other intelligence agencies were eavesdropping its own people and its allies, I am surprised that I have heard very few people talk about it and read fairly little about it in the news now that I am back in the States.

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NSA headquarters in Ford Meade, Md.

After the initial outrage seems to have died down a bit, I thought it was about time to see what people think about the topic and what the media in the US have to say about it. After all, I believe it is an all-important matter, for it concerns our personal freedom.

Two recent articles not only show how the disclosures are far from being over, but they also enlarge upon the media and its specific role in it. The first article, found on niemanlab.org, is a reminder how pervasive and alarming the matter still is; the second article, found on the guardian.com/uk, explicitly shows what can happen to investigative journalists. Since every journalist should have a keen interest in this matter, I highly recommend both pieces.

The crucial role news media play in a democratic society has seldom been more evident than it was this summer. Without newspapers, online news websites, television newscasts, and other media outlets, the world would have never learned about the previously unthinkable extent to which various intelligence agencies around the globe have access to metadata, thanks to the surveillance program PRISM, and even the content of phone calls and e-mails through XKeyscore. Therefore, they can potentially know everything about us. Although Edward Snowden was instrumental in making the news public, he could have never done it with the same effect, credibility, and scope without the help of the media.

Personally, I thought that British daily newspaper The Guardian and the German weekly news magazine Der Spiegel which collaborated in publishing Snowden’s disclosures,  struck the balance of informing the public while omitting information that could have endangered people associated with the program. Although they could not prevent the clandestine information from spreading, they are now trying to do what is in their power to avert future leaks. It is disturbing how the U.S. and U.K. governments respond to journalists reporting on the leaks. The surveillance state is obviously scared that journalists unveil secrets and facts about their eavesdropping activities, which I am sure means only one thing: That intelligence agencies like the NSA or the British GCHQ have got a lot more skeletons in their closet. Their legitimacy, even their right of existence, so to speak, is at stake.

How else do you explain David Miranda’s detention at Heathrow Airport on August 18th? Several journalists and UN representatives have subsequently warned the British government, saying that “the protection of national security secrets must never be used as an excuse to intimidate the press into silence and backing off from its crucial work in the clarification of human rights violation.”

These violations of the press prove once more that there is a need for a debate on how much privacy we are willing to give up as a society to ensure that threats like terrorism can be effectively countered. In other words: How much privacy and individual freedom do we have to sacrifice in order to ensure that terror acts can be prevented?

At the same time, however, it is also encouraging to see how journalists are not only standing up for their craft and their peers but for those who they serve by informing them, namely the public. However, while the majority of journalists seem to support their peers, some are being publicly criticized by fellow journalists. Mr. Greenwald, who was the liaison for whistleblower Edward Snowden for The Guardian, has come under intense criticism, just like Wikileaks founder Julian Assange, who has been inside the Ecuadorian embassy in London since June 2012.

The news media must not let the government, let alone some of their own intimidate them. The current events shed light on an important dynamic that is vital to the functioning of our so-called democratic society. We need the news media to ask the tough questions and to investigate where it hurts, because this is the only way we as a society can exert pressure and influence on the government. How are we, as a public, supposed to make our voices heard if we don’t find out what is going wrong?

I firmly believe it is the duty of our profession to collaborate with whistleblowers like Chelsea Manning and Edward Snowden and give them a platform to release their revelations. This is not to say that everything that whistleblower want to make public is ethically or morally defensible. There is certainly a fine line between disclosing something that the public has a right to know about and an information that is not essential and/or could put someone’s life in danger.

Yet, in the midst of shrinking budgets and concerns about quality, investigative journalism, the press needs to stand together and show authorities and governments that acts of intimidation will not prevent it from unveiling what every authority fears: the truth.

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