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Summary
For much of its history, the United States has held itself out as a model of freedom,
democracy, and open, accountable government.
Freedoms of expression and association,as well as rights to a fair trial, are protected by the Constitution, and US officials speak with pride of the freedom of the media to report on matters of public concern and hold government to account for its actions.
Yet, as this report documents, today those freedoms are very much under threat due to the government’s own policies concerning secrecy, leak prevention, and officials’ contact with the media, combined with large-scale surveillance programs.
If the US fails to address these concerns promptly and effectively, it could do
serious, long-term damage to the fabric of democracy in the country.
Specifically, this report documents the effects of large-scale electronic surveillance on the
practice of journalism and law, professions that enjoy special legal protections because they
are integral to the safeguarding of rights and transparency in a democracy.
To document these effects, we interviewed 92 people, including 46 journalists and 42 lawyers, about their concerns and the ways in which their behavior has changed in light of revelations of large scale surveillance.
We also spoke to current and former senior government officials who
have knowledge of the surveillance programs to understand their perspective, seek
additional information, and take their concerns into account in our analysis.
Whether reporting valuable information to the public, representing another’s legal
interests, or voluntarily associating with others in order to advocate for changes in policy,
it is often crucial to keep certain information private from the government.
In the face of a massively powerful surveillance apparatus maintained by the US government, however, that privacy is becoming increasingly scarce and difficult to ensure.
As a result, journalists and their sources, as well as lawyers and their clients, are changing their behavior in ways that undermine basic rights and corrode democratic processes.
Revelations of Large-Scale Surveillance
The United States government today is implementing a wide variety of surveillance
programs that, thanks to developments in its technological capacity, allow it to scoop up
personal information and the content of personal communications on an unprecedented
scale.
Media reports based on revelations by former National Security Agency (NSA)contractor Edward Snowden have recently shed light on many of these programs. They
have revealed, for example, that the US collects vast quantities of information—known
as “metadata”—about phone calls made to, from, and within the US. It also routinely
collects the content of international chats, emails, and voice calls. It has engaged in the
large-scale collection of massive amounts of cell phone location data.
Reports have also revealed a since-discontinued effort to track internet usage and email patterns in the US; the comprehensive interception of all of phone calls made within, into, and out of Afghanistan and the Bahamas; the daily collection of millions of images so the NSA can run facial recognition programs; the acquisition of hundreds of millions of email and chat contact lists around the world; and the NSA’s deliberate weakening of global
encryption standards.
In response to public concern over the programs’ intrusion on the privacy of millions of
people in the US and around the world, the US government has at times acknowledged
the need for reform.
However, it has taken few meaningful steps in that direction.
On the contrary, the US—particularly the intelligence community—has forcefully
defended the surveillance programs as essential to protecting US national security. In a
world of constantly shifting global threats, officials argue that the US simply cannot
know in advance which global communications may be relevant to its intelligence
activities, and that as a result, it needs the authority to collect and monitor a broad
swath of communications.
In our interviews with them, US officials argued that the programs are effective, plugging operational gaps that used to exist, and providing the US with valuable intelligence.
They also insisted the programs are lawful and subject to rigorous and multi-layered oversight, as well as rules about how the information obtained through them is used. The government has emphasized that it does not use the information gleaned from these programs for illegitimate purposes, such as persecuting political opponents.
The questions raised by surveillance are complex. The government has an obligation to
protect national security, and in some cases, it is legitimate for government to restrict
certain rights to that end. At the same time, international human rights and constitutional
law set limits on the state’s authority to engage in activities like surveillance, which have
the potential to undermine so many other rights. The current, large-scale, often indiscriminate US approach to surveillance carries enormous costs.
It erodes global digital privacy and sets a terrible example for other countries like India, Pakistan, Ethiopia, and others that are in the process of expanding their surveillance capabilities. I
t also damages US credibility in advocating internationally for internet freedom, which the US has listed as an important foreign policy objective since
at least 2010.
As this report documents, US surveillance programs are also doing damage to some of the
values the United States claims to hold most dear. These include freedoms of expression
and association, press freedom, and the right to counsel, which are all protected by both
international human rights law and the US Constitution.
Impact of Surveillance on Journalists
For journalists, the surveillance programs and a government crackdown on unregulated
contact between officials and the press have combined to constrict the flow of
information concerning government activity. An increase in the frequency of leak
prosecutions, as well as the government’s implementations of programs—such as the
Insider Threat Program—aimed at discouraging officials from sharing information
outside the government, have raised the stakes for officials who might consider even
talking to journalists.
Large-scale surveillance dramatically exacerbates those concerns by largely cutting
away at the ability of government officials to remain anonymous in their interactions
with the press, as any interaction—any email, any phone call—risks leaving a digital
trace that could subsequently be used against them.
This is particularly worrisome in light of changes to US law that allow intelligence information to be used more easily in criminal investigations, potentially allowing law enforcement to circumvent traditional warrant requirements.
Journalists told us that officials are substantially less willing to be in contact with the
press, even with regard to unclassified matters or personal opinions, than they were
even a few years ago. This can create serious challenges for journalists who cover
national security, intelligence and law enforcement, and who often operate in a gray
area—working with information that is sensitive but not necessarily classified, and speaking with multiple sources to confirm and piece together the details of a story that
may be of tremendous public interest.
In turn, journalists increasingly feel the need to adopt elaborate steps to protect sources
and information, and eliminate any digital trail of their investigations—from using high-end
encryption, to resorting to burner phones, to abandoning all online communication and
trying exclusively to meet sources in person.
Journalists expressed concern that, rather than being treated as essential checks on
government and partners in ensuring a healthy democratic debate, they now feel they may
be viewed as suspect for doing their jobs. One prominent journalist summed up what
many seemed to be feeling as follows: “I don’t want the government to force me to act like
a spy. I’m not a spy; I’m a journalist.”
This situation has a direct effect on the public’s ability to obtain important information
about government activities, and on the ability of the media to serve as a check on
government. Many journalists said it is taking them significantly longer to gather
information (when they can get it at all), and they are ultimately able to publish fewer
stories for public consumption.
As suggested above, these effects stand out most starkly in the case of reporting on the intelligence community, national security, and law enforcement—all areas of legitimate—indeed, extremely important—public concern.
Impact of Surveillance on Lawyers
Lawyers face a different challenge. They have a professional responsibility to maintain
the confidentiality of information related to their clients on pain of administrative
discipline.
They also rely on the ability to exchange information freely with their clients in
order to build trust and develop legal strategy, which is especially important in the realm
of criminal defense. Increased government surveillance undercuts these longstanding
and central elements of the practice of law, creating uncertainty as to whether lawyers
can ever provide true confidentiality while communicating electronically with clients.
Lawyers we interviewed for this report expressed the greatest concern about situations
where they have reason to think the US government might take an intelligence interest
in a case, whether it relates to the activities of foreign governments or a drug or terrorism prosecution.
As with the journalists, lawyers increasingly feel under pressure
to adopt strategies to avoid leaving a digital trail that could be monitored; some use
burner phones, others seek out technologies they feel may be more secure, and others
reported traveling more for in-person meetings.
Some described other lawyers expressing reluctance to take on certain cases that might incur surveillance, though by and large the attorneys interviewed for this report seemed determined to do their best to continue representing clients.
Like journalists, some felt frustrated, and even offended, that they were in this situation. “I’ll be damned if I have to start acting like a drug dealer in order to protect my client’s confidentiality,” said one.
The result is the erosion of the right to counsel, a pillar of procedural justice under human
rights law and the US Constitution.
Uncertainty and Secrecy
Uncertainty is a significant factor shaping the behavior of both journalists and lawyers. The
combination of the sheer number of surveillance programs, the complexity of the
underlying legal regimes, and the lack of clarity as to their scale and scope renders it
practically impossible for any layperson to discern which forms of communication and
data storage are secure and when they may be reasonably subject to surveillance.
Compounding matters, the government has failed fully to disclose the rules governing its
collection and use of information under the surveillance regime. Piecemeal access to this
information only creates greater doubt.
The US government has an obligation to defend national security, yet many of its
surveillance practices go well beyond what may be justified as necessary and
proportionate to that aim. Instead, these practices are undermining fundamental rights
and risk changing the nature of US democracy itself. It is time for the US to carry out
significant reforms of its surveillance programs and other policies contributing to the
harms documented in this report.
Human Rights Watch and the ACLU strongly urge the United States to:
- end large-scale surveillance practices that are either unnecessary or broader than necessary to protect national security or an equally legitimate goal;
- strengthen the protections provided by targeting and minimization procedures;
- disclose additional information about surveillance programs to the public;
- reduce government secrecy and restrictions on official contact with the media; and enhance protections for national-security whistleblowers.
Methodology
This report is based on interviews with 92 people in the United States, including journalists,
lawyers, and current and former US government officials.
Because of the sensitive nature of the questions asked, many interview subjects spoke on background, preferring that their comments not be attributed to them by name. A couple elected to speak entirely off the record.
Many of the interviews took place in or around New York City or Washington, DC. A
large number were conducted by telephone, though it was not always possible to determine
whether interviewees may have felt uncomfortable speaking entirely candidly over the phone.
We spoke with 46 journalists representing a wide range of news organizations, including
both larger and smaller media outlets. The major outlets include the New York Times, the
Wall Street Journal, the Washington Post, the Los Angeles Times, the Associated Press,
Reuters, McClatchy, The New Yorker, National Public Radio, and ABC News. Most interview subjects either formerly covered or currently cover the US intelligence community, national security, or law enforcement. Most work in print, but some also work in television or radio.
A few are or were editors or news executives. A significant number of the journalists are
highly decorated; as a group, the interviewees for this report have won at least a dozen
Pulitzer Prizes and many other prestigious journalism awards.
We interviewed 42 practicing attorneys, working in a variety of areas: criminal defense
lawyers (including public defenders both at the federal and state level, and private defense
attorneys representing a wide range of clients, including people charged with terrorism, drug, and financial crimes); judge advocates serving in the military and representing detainees at Guantanamo Bay; and lawyers engaged in complex civil litigation, representation of multinational corporations, and representation of foreign sovereigns.
Finally, we interviewed five current or former senior government officials with knowledge of the US government’s surveillance programs or related policies.
These include a senior official within the intelligence community and a senior official within the Federal Bureau of Investigation (FBI). We repeatedly requested interviews with senior officials at the National Security Agency (NSA), but after initially stating they would consider our request, the agency’s representatives ceased replying to our correspondence.
Note that the totals of each of the separate categories do not add up to 92 because at least one subject offered comments as a member of multiple groups.
https://www.aclu.org/sites/default/files/assets/dem14-withlibertytomonitorall-07282014.pdf