NSA Surveillance Causes Journalists to Have to Act Like Drug Dealers to Protect Sources
Fake information trails and burner phones. If you're wondering how journalists who cover sensitive federal government issues have adapted to the discovery that there's even more snooping going on than all but the most paranoid of them thought, it's a complicated mess. Human Rights Watch and the American Civil Liberties Union interviewed nearly four dozen journalists about how their jobs have changed in the wake of both Edward Snowden's leaks and the propensity for President Barack Obama's administration to prosecute leakers (or those who leak things the government doesn't want leaked, anyway). It's probably not news to anybody at this point that journalists have seen a chilling effect from their sources as a result of the government's behavior. But it is interesting to note how far it has gone for them:
While sources' employers sometimes have legitimate reasons for discouraging conversations about certain matters with the press, the stakes and the consequences have increased substantially in recent years, making conversations about declassified or innocuous subjects not worth the risk. One journalist described a source who was eventually fired when his or her employer found signs of the source's initial contact with journalists a year earlier, even though the source had not leaked classified information.
At the same time, the fact that senior government officials themselves routinely appear to authorize "leaks" of classified information has bred cynicism about the government's claims that these prosecutions are merely about enforcing the law. "Of course, leaks that help the government are sanctioned," observed Brian Ross, chief investigative correspondent for ABC News. Bart Gellman, senior fellow at The Century Foundation, and the winner of multiple Pulitzer Prizes, argued that official, sanctioned leaks reveal much more classified information than unofficial ones.
Yet, beyond the leak investigations and administrative efforts to prevent leaks, many journalists said that the government's increased capacity to engage in surveillance—and the knowledge that it is doing so on an unprecedented scale—has made their concerns about how to protect sources much more acute and real.
In fact, some believed that surveillance may be a direct cause of the spike in leak investigations. "It used to be that leak investigations didn't get far because it was too hard to uncover the source, but with digital tools it's just much easier, and sources know that." observed Bart Gellman. Peter Maass, a senior writer at The Intercept, concurred: "Leak investigations are a lot easier because you leave a data trail calling, swiping in and out of buildings, [and] walking down a street with cameras. It's a lot easier for people to know where you're going and how long you're there." Charlie Savage raised a similar point: "[E]lectronic trails mak[e] it easier to figure out who's talking to reporters. That has made it realistic [to investigate leaks] in a way that it wasn't before." Peter Finn, the National Security Editor at the Washington Post, expressed concern that "the government's ability to find the source will only get better."
So journalists have to resort to all sorts of tricks and countermeasures to try to make sure their sources are protected, which may sound like some sexy All the Presidents' Men stuff, but in actuality is probably very burdensome to the task of actually getting information:
In addition to seeking security in a combination of more and less advanced technology, a number of journalists have adapted their use of conventional tools to make it more difficult to track down their sources through surveillance. One approach involves deliberately creating a misleading electronic trail. For example, one journalist described a colleague who calls a large number of possible sources before a story comes out in order to obscure the identities of those who actually provided information. Another reported booking "fake" travel plans for places he never intended to visit.
Journalists and sources have also made creative use of common technologies to hide their interactions. The most common such approach is to use "burner" phones—cell phones with limited identifiable links to the owner, and which one disposes of after a matter of days or weeks. A significant number of journalists described elaborate processes by which they managed to obtain such phones, limit their traceability, and make them operable for a short period.
Others described a variety of similar techniques for sharing information with sources electronically while minimizing the trace left behind. Some detailed the inventive use of email accounts or phones, as well as tricks for hiding purchase records related to reporting activity.
Journalists also have made efforts to better protect their information. Due to the traceability of GPS information from cell phones, and the possibility of turning cell phones into listening devices (even if they are off), several journalists reported turning off cell phones or taking out their phone batteries before speaking with people in person, or even leaving phones behind altogether when visiting sources. One journalist reported keeping his files "on a flash drive in [his] pocket all the time," and taking additional precautions with his notes—such as writing them by hand and encoding them. A couple of others have employed codes for discussing stories or sources, whether within an office or otherwise.
While the part of the report that discusses the chilling behavior of surveillance on the work of journalists is getting most of the attention, the report also discusses the potential impact of government snooping on lawyers, too, as ample evidence shows the feds have been gaining access to privileged communication between lawyers and clients. When Glenn Greenwald finally revealed some names of actual individuals targeted for surveillance by the government—though they were not suspected of any crimes themselves—two were representing foreign government or organizations that were suspected of terrorist ties. Lawyers are left not knowing how safe it is to speaking openly with their clients:
As a result of recent surveillance revelations, a couple of attorneys reported feeling duty-bound to warn their clients that information related to their case may not remain private. Linda Moreno noted, "Given the now publicly admitted revelations that there is no privacy in communications, including those between attorneys and their clients, I feel ethically obligated to tell all clients that I can't guarantee anything [they] say is privileged … or will remain confidential." Similarly, Nancy Hollander, who focuses on criminal defense including in national security contexts, has begun including a bolded auto-signature in her work-related emails with the same effect: "Warning: Based on recent news reports, it is possible that the NSA is monitoring this communication." Overall, however, without a clear sense of the boundaries of US government surveillance, and the effectiveness of various countermeasures, it is difficult to discern what steps lawyers might be obliged to take to protect their information.
Gillers cautioned lawyers about the use of phone, email, and text communications, noting that when it comes to electronic data, "it doesn't matter what the vehicle is." An experienced criminal defense attorney observed similarly that, based on what we knew about US government surveillance programs before the Snowden leaks, overseas travel (instead of international electronic communication) was likely ethically required for attorneys handling certain types of cases. Now, he argued, "Lawyers have to assume any electronic communication they have is going to be intercepted." Although the risk that poses will vary with the nature of the communications, and might be mitigated in some instances by security measures, lawyers need to treat the likely collection of electronic communications as a "fact of life."
In its conclusion, the report calls for reforms, such as an end to the overclassification of government documents, additional disclosure about the nature of the surveillance programs, and enhanced protections for whistleblowers. Read the entire report here.
