The National Security Agency’s mass surveillance programs flew mostly under the radar before Edward Snowden’s leaks hit the news last year. Ever since those revelations, there has been a chilling effect on the constitutionally guaranteed freedom of speech, especially in combination with the Obama administration’s crackdown on government officials speaking with the press, according to a new report released by Human Rights Watch and the American Civil Liberties Union. “With Liberty To Monitor All” is based on interviews with dozens of prominent American journalists, lawyers, and current and former government officials.
Journalists have found that potential sources within the government are much less willing – and in some cases completely unwilling – to talk to them anonymously for fear of reprisal, particularly since the Obama administration has engaged in a war on journalism by prosecuting more individuals under the 1917 Espionage Act than all previous administrations combined. This climate of fear has extended beyond sensitive topics to even unclassified material and personal opinions, as officials fear losing their security clearances or even being targeted by the administration’s Insider Threat program.
Those journalists who continue to perform their jobs despite this massive handicap have resorted to a wide variety of tactics to try to avoid surveillance while performing their journalistic duties, including using complicated encryption software, working on computers without connections to the internet, only talking on disposable phones, or even forgoing electronic communications completely. “Those cumbersome new techniques are slowing down reporters in their pursuit of increasingly skittish sources,” HRW said in its press release about the report, “resulting in less information reaching the public.”
The new HRW/ACLU report’s findings from journalists reinforce those of a November 2013 report by PEN America, which found that significant numbers of American writers have engaged in self-censorship as a result of government surveillance. They assume their communications are monitored, leading to behaviors one wouldn’t expect of writers in a free society. Some 28 percent of respondents to the PEN survey said they had scaled back or outright avoided social media use; 24 percent have avoided sensitive topics in phone and email conversations; and another 16 percent have avoided writing or speaking about a particular topic.
The HRW/ACLU report also highlights the dangers facing the constitutionally guaranteed right to legal counsel. “The legal community, perhaps even more so than the media, is plagued by uncertainty and confusion over the implications for their work of surveillance of the scope revealed during the last year,” the report states. Despite assurances from the NSA that it respects attorney-client privilege and place restrictions on how such communications may be used, attorneys feel the need to let their clients know that anything they say is being collected by the government, often attaching a footer to every email they send warning that their communications are not secure. Even attorneys within the government feel the pinch: an Army Judge Advocate General major told the researchers writing the report that “we are fearful that our communications with witnesses abroad are monitored.”
These concerns make it difficult for attorneys to perform their jobs to the fullest of their abilities, since communication with clients is the cornerstone of being able to properly represent them in court. Some lawyers have resorted to similar tactics as those used by journalists to communicate freely with their sources, sometimes even going so far as to host records on their own internal servers to protect them from government surveillance. Others expressed concern that using encryption, or other methods of protecting their communications with clients, would make them greater targets for the government. One attorney for a defendant detained at Guantanamo Bay said, “I don’t want to look like I’m doing something illegal.” Another lawyer said, “I’ll be damned if I have to start acting like a drug dealer in order to protect my client’s confidentiality.”
The report urges the government to reform its surveillance practices. “The US holds itself out as a model of freedom and democracy, but its own surveillance programs are threatening the values it claims to represent. The US should genuinely confront the fact that its massive surveillance programs are damaging many critically important rights,” said researcher Alex Sinha, who worked on the report.
While we prepare to pass out from holding our breath, waiting for the government to do the right thing, the fight against these unconstitutional surveillance programs continues within the court system. The Electronic Frontier Foundation filed a motion in its ongoing Jewel v. NSA case just this past week seeking for a judge to issue a partial summary judgment ruling that the dragnet surveillance is unconstitutional under the Fourth Amendment.
The EFF motion is based entirely on admissions from the government that it a) seizes communications from the internet backbone and b) searches the entire stream, including content. This way the judge will not have to rule on whether the government is telling the truth. “In essence, we are saying that even if you accept the government’s own descriptions of its internet backbone spying, the spying is still unconstitutional,” said EFF Legal Director Cindy Cohn. “The NSA is conducting suspicionless and indiscriminate mass surveillance that is like the abusive ‘general warrants’ that led the nation’s founders to enact the Fourth Amendment. The Constitution was written to ensure that Americans felt secure in their papers, digital or otherwise, and we’re asking the judge to rule that the NSA’s mass seizures and searches are illegal.”
Jewel v. NSA has been in the court system since 2008. EFF is also litigating two other cases fighting the NSA surveillance programs, First Unitarian Church of Los Angeles v. NSA and Smith v. NSA.
Disclosure: I have been a member of the EFF for years. I have one of their stickers on my bicycle.
