Spying on the newsroom

"A year ago, we were more worried about the Chinese government snooping,” a U.S. national security journalist told me when I asked how revelations of U.S. government surveillance had affected his ability to do his job. “Now it's a distant second to our own government." 

I got similar responses from many of the dozens of top national security, intelligence and law enforcement journalists I spoke to while researching a new report. They told me that in the year-plus since the Guardian and other news organizations began to report on the scope U.S. surveillance, based on documents provided by Edward Snowden, sources have become much less willing to talk. They described the lengths to which they have to go to keep communications private, the extra time it takes to confirm details and produce stories,  and their concern that, as a result, less information on matters of public concern is actually reaching the public.

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Some reporters said that potential sources, afraid of losing their security clearances (which can end their careers), or being fired or even prosecuted, are increasingly reluctant to talk to them about anything—including unclassified matters, like mismanagement and dysfunction inside government agencies. 

These are not idle fears. Worries over government spying dovetail with concerns among many reporters that the Obama administration has cracked down on federal officials’ contact with the press. Consider: Under the administration’s “Insider Threat Program,” federal officials must report one another for “suspicious” behavior that might betray an intention to leak information. And the intelligence community recently barred all unauthorized contact between intelligence officials and the press.

Another concern is the recent spike in leak prosecutions. “It is not lost on us, or on our sources, that there have been eight criminal cases against sources [under the Obama administration] versus three before [under all previous administrations combined],” one Pulitzer Prize-winning journalist told me. Mass surveillance means that the government now has records of journalists’ calls, emails, and location, which could make it much easier to track journalists’ digital trail, and find their sources. A number wondered whether surveillance helps explain the jump in prosecutions. As one investigative reporter noted, “I’m pretty worried that NSA information will make its way into leak investigations.”

In an effort to protect themselves and their sources, many journalists have begun adopting a combination of strategies, both high-tech and low. Some use encryption, or air-gapped computers, which are completely isolated from other networks, including the Internet. Others contrive ways to bump into sources in person, or call them from friends’ houses.

Several reported using “burner” phones—prepaid cell phones typically bought with cash and discarded within weeks. The wide variations in their techniques indicate that even experienced journalists who cover these issues are uncertain about what information they should protect and how best to protect it.

U.S. government officials I interviewed defended surveillance as lawful and essential for protecting national security. They also discounted the concerns of journalists, observing that sensitive information still frequently shows up in newspapers.

But the government leaks much of that information strategically. And the officials’ attempts to brush aside the impact on the media’s ability to inform the public conflicts directly with what dozens of journalists independently told me. Nor is the problem limited to journalism. Lawyers I interviewed expressed similar fears about the impact of surveillance on their ability to protect confidential communications. Independent groups and others who handle sensitive information may reasonably share these same concerns.

The U.S. has long held itself out as a leader on freedom of the press and freedom of expression. Rather than dismissing journalists’ concerns, the U.S. should recognize the importance of a vibrant media in informing the public, enabling people to exercise their rights to participate effectively in the political process, and allowing them to hold their government to account. When less information reaches the public, all of society suffers for it.

In an encouraging sign, last week Sen. Patrick Leahy (D-Vt.) introduced a bill that, if approved, has the potential to end bulk collection of domestic phone records in the U.S. and address some, though not all, of the concerns voiced by journalists. Rolling out the USA FREEDOM Act, Leahy noted "the costs of not placing reasonable limits on government surveillance. Not just the significant economic costs… but the impact on journalistic freedom and also our right to counsel."

The longer the U.S. government embraces policies that force journalists into elaborate maneuvers to protect their information, the more clearly it sends the message that it views journalism as a subversive activity, rather than a valued part of democracy. If we as the public permit that, we become complicit in devaluing the essential work of journalists that we have long relied upon and taken for granted. As another Pulitzer Prize-winning journalist told me: “I don’t want the government to force me to act like a spy. I’m not a spy; I’m a journalist.” We should not stand by as that distinction deteriorates.  

Sinha is the Aryeh Neier Fellow at Human Rights Watch and the ACLU, and the author of  “With Liberty to Monitor All,” a new report on the impact of U.S. surveillance practices on journalists and lawyers.