The journalism world has been rightly outraged by the Justice Department dragging the Associated Press (and now a Fox News reporter) into one of its sprawling leak investigations. As we wrote last week, by obtaining the call records of twenty AP phone lines, “the Justice Department has struck a terrible blow against the freedom of the press and the ability of reporters to investigate and report the news.”
But there are several other important lessons that this scandal can teach us besides how important free and uninhibited news-gathering is to the public’s right to know.
1. Weak Privacy Laws That Doomed AP Affect Everyone
The AP detailed in its letter to the Justice Department how its privacy was grossly invaded even though the government accessed only the call records of its reporters and not the content of their conversations. We completely agree. Unfortunately, this isn’t just a problem in the AP investigation. Law enforcement agencies routinely demand and receive this information about ordinary Americans over long periods of time without any court involvement whatsoever, much less a full warrant.
For example, according to information released by the phone companies to Rep. Ed Markey, Sprint alone received a staggering 500,000 subpoenas for call records data last year.
The DOJ’s decision to dive into these call records shows the growing need to update our privacy laws to eliminate the outmoded Third Party Doctrine—which holds that anything you give to a service provider, or that a service provider collects as part of providing you a service—can retain no reasonable expectation of privacy. In an era where email is stored by our providers, cellphone companies keep records that track our location and cloud services hold our documents, it’s long past time to bring our interpretation of the Fourth Amendment and statutory electronic privacy laws in compliance with the 21st Century.
In response to the AP scandal, a bipartisan coalition in Congress just introduced a bill to partially fix this problem called The Telephone Records Protection Act. The bill would require the Justice Department to get a judge’s approval before seeking these records. At EFF, we think the government should have to go even further than a court order: a judicial warrant showing the kind of probable cause required by the Fourth Amendment should be the standard. But this bill is certainly an improvement over administrative subpoenas, which don’t need a sign-off from a judge at all and allow the Executive branch to seek information without any external check.
2. Phone Companies May Give Up Your Information Without Telling You
As the New York Times reported, the AP is still examining if and when any telephone companies tried to push back on the over-broad requests for its call records. “But at least two of the journalists’ personal cellphone records were provided to the government by Verizon Wireless without any attempt to obtain permission to tell them so the reporters could ask a court to quash the subpoena,” the Times said. And it also seems clear that the AP itself wasn’t given notice before their phone company turned over the records.
In EFF’s 2013 “Who Has Your Back” report, which tracks several ways in which communications companies can help protect user privacy, we give a star for promising to notify users about government demands for data whenever whenever the company is not legally prevented from doing so. Notably, Verizon does not have such a notification policy and did not receive a star. In fact, Verizon was the only company to receive zero stars.
This isn’t a small problem or just a problem for journalists. Verizon received 260,000 similar subpoenas for call records last year. The government requests this information with regularity, and given the phone companies control the data, communications company policies are all that stand between you and governmental overreach.
Users should demand that their communications companies notify them when the government comes seeking information, unless they are legally barred by a court order.
3. Government often Overstates National Security Claims, Over-classifies Information
We’ve written many times about the many ways “national security” has been invoked—and exaggerated—in order to cover up government embarrassment or wrongdoing, or to assert powers that would normally not be granted under the Constitution. The government routinely over-classifies information that should never be secret, according to reports commissioned by the White House itself.
The most glaring example for EFF is our lawsuit over the NSA warrantless wiretapping program, where the government won’t admit or deny that the program even exists, citing the danger to national security, despite thousands of pages of public evidence. The government has argued the same thing in cases about torture and the CIA drone program where, many times, the same information that they claim is secret is on the front pages of the nation’s newspapers.
In the AP’s case, while Attorney General Holder says this leak put “lives at risk,” John Brennan said the opposite around the time of the story (“Brennan said the plot was never a threat to the U.S. public or air safety,” reported Reuters). The AP also held its story for six days until the CIA told them it was safe to publish and the White House had a news conference planned the day after the story to announce the successful counterterrorism operation.
As the late Supreme Court Justice Huge Black once said, “The word ‘security’ is a broad, vague generality whose contours should not be invoked to abrogate the fundamental law embodied in the First Amendment.”
4. There’s Not Much Recourse For Prosecutorial Misconduct
In this case, just like the case of Aaron Swartz, there has been widespread criticism that the Justice Department has abused its authority and aggressively pursued parties in an unprofessional manner. As we detailed last week, it seems the Justice Department didn’t follow its own guidelines when issuing subpoenas about[?] the reporters, or at least went to the very edge of its own guidelines.
Just like in the Swartz case, the specific prosecutor has a history of over-aggressive prosecutions (even being accused of overzealous prosecution by Eric Holder himself when he was in private practice). Yet when Congress asked Holder at a hearing about the allegations, just like in the Swartz case, he did not admit to any wrongdoing, and was able to deflect questions about his department’s handling of the case. Unfortunately, there is not much recourse for meaningful remedy for the public in these situations, and this case is just the latest example.
5. Journalists Need to be Pro-Active in Protecting Their Digital Security
In an age where warrantless surveillance is skyrocketing and governments potentially have access to an astonishing amount of information, journalists must learn to proactively protect both themselves and their sources.
The Committee to Protect Journalists Journalist Security Guide is an excellent place to start. It addresses concerns faced by journalists working inside the United States and internationally.
Wired published an op-ed last week about the care one needs to take from the source’s end if one wishes to send information to the press undetected. Much of the advice is applicable to reporters talking to sources as well. Additionally, the New Yorker has just released a promising—but un-tested—anonymous leak submission system, coded by Aaron Swartz before he tragically died in January. In certain circumstances physical mail remains the safest option.
Overall, the final lesson is that journalists, and sources, need to take security seriously. Trusting that the government won’t come after you because you’re engaged in journalism, serving the public interest, or helping reveal wrongdoing is plainly not sufficient.
On last Thursday’s Daily Show, Jon Stewart boldly went where no mainstream reporter has gone so far this election cycle: asking President Barack Obama why has he embraced Bush’s warrantless wiretapping program after campaigning against it on the grounds that it violated Americans’ civil liberties. While Stewart’s question was commendable, Obama’s answer was puzzling because it seems so obviously untrue.
Stewart first reminded Obama of his Bush-era statements that “we don’t have to trade our values and ideals for our security,” and pointedly asked the President, “do you still believe that?” He then specifically raised warrantless wiretapping, which Obama frequently criticized as a presidential candidate in 2008:
STEWART: I think people have been surprised to see the strength of the Bush era warrantless wiretapping laws and those types of things not also be lessened—That the structures he put in place that people might have thought were government overreach and maybe they had a mind you would tone down, you haven’t.
OBAMA: The truth is we have modified them and built a legal structure and safeguards in place that weren’t there before on a whole range issues.
To the contrary, there’s no indication that the still-active warrantless wiretapping program—which includes a warrantless dragnet on millions of innocent Americans’ communications—has significantly changed from the day Obama took office. With regard to the FISA Amendments Act, the Obama Administration has actively opposed all proposed safeguards in Congress. All the while, his Administration has been even more aggressive than President Bush in trying to prevent warrantless wiretapping victims from having their day in court and has continued building the massive national security infrastructure needed to support it.
But let’s take a closer look at the President’s actions on wiretapping and related issues:
Voting against FISA Amendments Act, Filibuster Telecom Immunity
Early in his first presidential campaign, then-Senator Obama was a leading critic of giving telecom companies like AT&T immunity for breaking the law to assist in the government in warrantless wiretapping. He repeatedly promised to filibuster any bill that contained retroactive immunity for telecom companies. Yet in 2008, when Congress debated the FISA Amendments Act—the law that allowed the President to give telecom companies full, retroactive immunity—Obama not only refused to filibuster the bill, but voted for it.
That decision came full circle just two weeks ago, when Obama’s Justice Department successfully convinced the Supreme Court to deny EFF’s appeal challenging the law’s constitutionality, ensuring AT&T and other telecommunications companies will never face legal consequences for breaking the law, both in the past and in the future.
Fixing FISA Amendments Act After Elected
Despite voting for the FISA Amendments Act, then-candidate Obama still promised to reform the law when he was elected president. But four years later, the FISA Amendments Act is up for renewal in Congress, as it expires at the end of this year. This would be perfect time to implement the reforms Obama promised, and there are several common sense amendments that would do so.
The Obama administration, however, is actively opposing any new privacy safeguards or transparency provisions, saying it is their “top priority” to renew it with no changes.
Stopping the Use of the State Secrets Privilege
Congress isn’t the only place where the President has been hostile to any “legal structure or safeguards” for the warrantless wiretapping. He has steadfastly sought to prevent the courts from engaging in any meaningful review
In EFF’s long-running lawsuit Jewel v. NSA, along with several related lawsuits, the Obama administration has continued the Bush Administration strategy of invoking the ‘state secrets’ privilege and demanding immediate dismissal (a practice which Obama specifically criticized on his 2008 campaign website). This, plus many other invocations of the privilege occurred even after a supposed internal policy change that was supposed to restrict its use.
Using the state secrets privilege for electronic surveillance is plainly wrong, since FISA specifically requires courts to determine the legality of national security spying. And of course the argument that the spying is a secret is increasingly untenable, as multiple whistleblowers, hundreds of pages of already-public evidence—including government admissions—and a massive construction project in Utah attest to its ongoing existence.
In addition, in both Jewel and other cases, the government has raised extremely technical legal arguments that the cases must be dismissed because it has “sovereign immunity.”In Al-Haramain v. Obama, a case where the government was caught red-handed illegally wiretapping attorneys, the Obama Administration was even able to convince the Ninth Circuit to dismiss the case because, according to the court, only government individuals can be sued, not the agencies that actually did the spying.
Declassifying Secret FISA Court Opinions
Both in 2010 and 2011, Obama administration officials promised to work to all declassify secret FISA court opinions that contained “important rulings of law.” These opinions would shed light whether and how Americans’ communications have been illegally spied on.
Since then, the administration has since refused to declassify a single opinion and still refuses to release the full (rescinded) legal memo written by Bush administration lawyer John Yoo that attempted to justify the illegal and unconstitutional program in 2001.
FISA court secrecy has never been more troubling, given the administration admitted in July that the FISA court ruled that collection done by the NSA violated the Fourth Amendment rights of some unknown American on at least one occasion. EFF has since filed a Freedom of Information Act lawsuit for that opinion, plus any others discussing the constitutionality of warrantless surveillance, but the Obama administration is fighting mightily against it.
Secret Safeguards Aren’t Safeguards
Some have suggested it’s possible when Obama said “safeguards” on the Daily Show, he is referring to some unspecified secret administrative rules he has put into place. Yet if these “safeguards” exist, they have been kept completely secret from the American public, and at the same, the administration is refusing to codify them into the law or create any visible chain of accountability if they are violated. But given the ample evidence of Constitutional violations since Obama took office (see: here, here, and here), these secret safeguards we don’t know exist are clearly inconsequential.
Here’s hoping other reporters follows up on Stewart’s question soon and ask Obama to be much more specific about his past and future plans to make sure the American people are not illegally spied on.
- Warrantless Wiretapping Worse Under Obama; Fascism on the Rise (tenthamendmentcenter.com)
- Supreme Court Allows NSA’s Warrantless Wiretapping to Continue (thenewamerican.com)
- The New York Times Reminds Us the NSA Still Warrantlessly Wiretaps Americans, and Congress Has the Power to Stop It (eff.org)
EFF Asks Court to Reject Stale State Secret Arguments So Case Can Proceed
San Francisco – Three whistleblowers – all former employees of the National Security Agency (NSA) – have come forward to give evidence in the Electronic Frontier Foundation’s (EFF’s) lawsuit against the government’s illegal mass surveillance program, Jewel v. NSA.
In a motion filed today, the three former intelligence analysts confirm that the NSA has, or is in the process of obtaining, the capability to seize and store most electronic communications passing through its U.S. intercept centers, such as the “secret room” at the AT&T facility in San Francisco first disclosed by retired AT&T technician Mark Klein in early 2006.
“For years, government lawyers have been arguing that our case is too secret for the courts to consider, despite the mounting confirmation of widespread mass illegal surveillance of ordinary people,” said EFF Legal Director Cindy Cohn. “Now we have three former NSA officials confirming the basic facts. Neither the Constitution nor federal law allow the government to collect massive amounts of communications and data of innocent Americans and fish around in it in case it might find something interesting. This kind of power is too easily abused. We’re extremely pleased that more whistleblowers have come forward to help end this massive spying program.”
The three former NSA employees with declarations in EFF’s brief are William E. Binney, Thomas A. Drake, and J. Kirk Wiebe. All were targets of a federal investigation into leaks to the New York Times that sparked the initial news coverage about the warrantless wiretapping program. Binney and Wiebe were formally cleared of charges and Drake had those charges against him dropped.
Jewel v. NSA is back in district court after the 9th U.S. Circuit Court of Appeals reinstated it in late 2011. In the motion for partial summary judgment filed today, EFF asked the court to reject the stale state secrets arguments that the government has been using in its attempts to sidetrack this important litigation and instead apply the processes in the Foreign Intelligence Surveillance Act that require the court to determine whether electronic surveillance was conducted legally.
“The NSA warrantless surveillance programs have been the subject of widespread reporting and debate for more than six years now. They are just not a secret,” said EFF Senior Staff Attorney Lee Tien. “Yet the government keeps making the same ‘state secrets’ claims again and again. It’s time for Americans to have their day in court and for a judge to rule on the legality of this massive surveillance.”
For the full motion for partial summary judgment:
For more on this case:
Electronic Frontier Foundation
Senior Staff Attorney
Electronic Frontier Foundation