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New reports shed light on surveillance’s chilling effects

Human Rights Watch and the American Civil Liberties Union have published a joint report highlighting the chilling effects that US surveillance instills in journalists and lawyers, concluding that “surveillance is undermining media freedom and the right to counsel, and ultimately obstructing the American people’s ability to hold their government to account.” The EFF writes that the report “adds to the growing body of evidence that the NSA’s surveillance programs are causing real harm.”

As the ACLU explains:

The report is drawn from interviews with some 50 journalists covering intelligence, national security, and law enforcement for outlets including the New York Times, the Associated Press, ABC, and NPR.

The U.S. has long held itself out as a global leader on media freedom. However, journalists interviewed for the report are finding that surveillance is harming their ability to report on matters of great public concern.

Surveillance has magnified existing concerns among journalists and their sources over the administration’s crackdown on leaks. The crackdown includes new restrictions on contact between intelligence officials and the media, an increase in leak prosecutions, and the Insider Threat Program, which requires federal officials to report one another for “suspicious” behavior that might betray an intention to leak information.

The HRW/ACLU report is part of a growing body of evidence that journalists and lawyers feel their ability to protect sources and clients is threatened. In an interview with the Guardian last month, Edward Snowden recommended that professionals start to use encryption:

An unfortunate side effect of the development of all these new surveillance technologies is that the work of journalism has become immeasurably harder than it ever has been in the past. Journalists have to be particularly conscious about any sort of network signalling, any sort of connection, any sort of licence plate reading device that they pass on their way to a meeting point, any place they use their credit card, any place they take their phone, any email contact they have with the source because that very first contact, before encrypted communications are established, is enough to give it all away.

No matter how careful you are from that point on, no matter how sophisticated your source, journalists have to be sure that they make no mistakes at all in the very beginning to the very end of a source relationship or they’re placing people actively at risk. Lawyers are in the same position. And investigators. And doctors.

While professional associations have taken part in international investigations and legal challenges resulting from the Snowden revelations, as the HRW/ACLU report describes, there is a lack of consensus about what best practice should be for journalists and lawyers in a post-Snowden world.

NFA Report on Surveillance Costs

Just a day after the HRW/ACLU report, the New America Foundation published ‘Surveillance Costs: The NSA’s Impact on the Economy, Internet Freedom & Cybersecurity,’ an attempt to “quantify and categorize the costs of the NSA surveillance programs since the initial leaks were reported in June 2013.” The NFA finds that “the NSA’s actions have already begun to, and will continue to, cause significant damage to the interests of the United States and the global Internet community,” focusing on economic costs to US businesses, the harm done to US credibility and the “serious damage to Internet security through [the NSA’s] weakening of key encryption standards.”

Series of Reports on Surveillance Impact

The reports continue a series of investigations into the many ways that US surveillance infringes on Americans’ rights and privacy. In October 2013, the Committee to Protect Journalists published ‘The Obama Administration and the Press: Leak investigations and surveillance in post-9/11 America,’ a look at how the current crackdown on whistleblowers and the journalism they enable is dissuading officials from speaking to the press.

CPJ writes:

U.S. President Barack Obama came into office pledging open government, but he has fallen short of his promise. Journalists and transparency advocates say the White House curbs routine disclosure of information and deploys its own media to evade scrutiny by the press. Aggressive prosecution of leakers of classified information and broad electronic surveillance programs deter government sources from speaking to journalists.

New York Times reporter Scott Shane told CPJ:

Most people are deterred by those leaks prosecutions. They’re scared to death. There’s a gray zone between classified and unclassified information, and most sources were in that gray zone. Sources are now afraid to enter that gray zone. It’s having a deterrent effect. If we consider aggressive press coverage of government activities being at the core of American democracy, this tips the balance heavily in favor of the government.

CPJ shows that though 9/11 was a “watershed moment” that led to the vast expansion of secrecy and surveillance, the Obama Administration has been even more closed off to the press than previous presidents.

PEN America

In November 2013, PEN America released a report on a less-discussed sector of surveillance targets: writers. PEN concludes that “freedom of expression is under threat and, as a result, freedom of information is imperiled as well.”

Recounting their findings, PEN writes:

Fully 85% of writers responding to PEN’s survey are worried about government surveillance of Americans, and 73% of writers have never been as worried about privacy rights and freedom of the press as they are today. PEN has long argued that surveillance poses risks to creativity and free expression. The results of this survey—the beginning of a broader investigation into the harms of surveillance—substantiate PEN’s concerns: writers are not only overwhelmingly worried about government surveillance, but are engaging in self-censorship as a result.

PEN says that writers showed a “reluctance to write or speak about certain subjects; reluctance to pursue research about certain subjects; and reluctance to communicate with sources, or with friends abroad, for fear that they will endanger their counterparts by doing so.”

Privacy and Civil Liberties Oversight Board

Finally, the Privacy and Civil Liberties Oversight Board published, on 2 July 2014, a ‘Report on the Surveillance Program Operated Pursuant to Section 702 of the Foreign Intelligence Surveillance Act.’ The NSA has broadly interpreted section 702 to sweep up massive amounts of data on both foreign citizens and Americans.

The Center for Constitutional Rights, which represents several inmates at Guantanamo Bay, criticises some aspects of PCLOB’s focus, but writes:

Deeply troubling, the report found that attorneys’ legally-privileged communications are used and shared by the NSA, CIA and FBI unless they are communications directly with a client who has already been indicted in U.S. courts, which strongly suggests that the contents of privileged attorney-client communications at Guantanamo are subject to NSA warrantless surveillance. This raises serious concerns about the fairness of the military commission system and would seem to violate court orders entered in Guantanamo habeas cases that protect attorney-client privilege.