Category: Legislation

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UK watchdog warns that terrorism laws threaten journalists and sources

The UK’s independent reviewer of terrorism legislation has said that the British government is drawing its interpretation of ‘terrorism’ too broadly, telling the BBC that the current definition “has begun to catch people it was never really intended to catch.”

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In a report delivered to Parliament on 22 July 2014, Anderson expressed particular concern about the possibility of journalists and bloggers having their activities made a subject of UK terrorism laws. The case of David Miranda, the partner of Glenn Greenwald, who was stopped at Heathrow airport for 9 hours in August 2013 and had his electronic equipment seized by UK police brought this issue into sharp focus. The action of UK border police was upheld by the High Court in London on 19 February 2014.

In particular, Anderson points out that the UK does not require a link to acts of violence in the way it defines terrorism, only an intent to “influence the government.”

What the Miranda judgment reveals is that the publication (or threatened publication) of words may equally constitute terrorist action. It seems that the writing of a book, an article or a blog may therefore amount to terrorism if publication is “for the purpose of advancing a political, religious, racial or ideological cause”, “designed to influence the government” and liable to endanger life or create a serious risk to health or safety.

As Anderson argues, the UK’s statutory definition of terrorism is broad enough that a blogger arguing against the vaccination of children on political or religious grounds could theoretically fall within its bounds if their actions were judged to present a serious risk to public health. Under ancilliary laws, a large swath of speech acts – including the possession of articles for a purpose connected with publication, acts preparatory to publication or even the encouragement of such acts of publication – could also be construed as offences.

The degree of discretion this “over broad” definition allows executive authorities, concludes Anderson “leaves citizens in the dark and risks undermining the rule of law,” weakens public support for terrorism legislation generally and threatens to chill “legitimate enquiry and expression” by introducing the possibility of arbitrary prosecution.

David Miranda’s appeal is due to be heard by the Court of Appeal later this year.

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Edward Snowden Journalism Legislation News

Australia’s new law would criminalise Snowden reporting

Australian attorney general George Brandis has introduced an amendment to National Security Bill 2014, which he says will criminalise the removal of intelligence information from an agency but is written so broadly that it can potentially be used to punish journalists for publishing or reporting on intelligence information they discover or receive.

As the Guardian reports, according to the Bill’s explanatory memorandum, it criminalises “disclosures by any person, including participants in an SIO [special intelligence operation], other persons to whom information about an SIO has been communicated in an official capacity, and persons who are the recipients of an unauthorised disclosure of information, should they engage in any subsequent disclosure”.

This last clause effectively makes journalism — publishing and reporting on secret government documents — a crime.

The new Bill is in line with an ongoing crackdown on whistleblowing and subsequently on the journalism it enables, in the spirit of the US government’s persecution and ongoing investigation of WikiLeaks for publishing Iraq and Afghanistan war logs and State Department cables. In the US trial of Army whistleblower Chelsea Manning, military prosecutors avowed that they would have tried Manning the same way had she passed the documents to the New York Times rather than WikiLeaks.

It also recalls the abusively broad language of the 1917 Espionage Act, a conviction of which requires merely “potential” harm — no proof of actual damage caused is needed. As Pentagon Papers whistleblower Daniel Ellsberg writes, reversing Manning’s 35-year prison sentence and conviction on multiple Espionage Act counts is America’s best shot at ending the government’s use of the law to imprison truthtellers.

The Espionage Act carries a ten-year prison term, and Australia’s new bill does as well, making it a crime to “endanger the health or safety of any person or prejudice the effective conduct of a special intelligence operation.” This language hypes fears of national security damage without any factual backing. Snowden-released documents have been published, excerpted from and reported on for more than a year, and American officials have been unable to point to any tangible harm as a result.

Rather than learn from this lack of damage that these documents needn’t have been classified in the first place, Brandis is moving in the opposite direction, stoking fears in an effort to dissuade whistleblowing and, more broadly, Australian journalism.

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Journalism Legislation News Whistleblowing

US ‘Free Flow of Information Act’ targets whistleblowers and independent journalists

In September 2013 the US Senate Judiciary Committee voted to set the limits of ‘journalism’, clearly defining whistleblowers as illegitimate sources and freelance or independent journalists as not ‘proper’ journalists.

The Free Flow of Information Act (FFIA)  purports to “maintain the free flow of information to the public”, but in practice it represents a move towards state-sanctioned journalism. The bill is now awaiting a full Senate vote.

journalismFFIA includes what has been termed the “WikiLeaks clause”, whereby those “whose principal function… is to publish primary source documents that have been disclosed to such person or entity without authorization” are exempt from their definition of ‘journalist’, and thus from protection under the law. As such, Chuck Schumer D-NY, a sponsor of the bill, admitted that the bill’s purported protections are “probably not enough” to cover Glenn Greenwald, the journalist who first reported the Snowden documents.

Carey Shenkman, a specialist in First Amendment law, argues that FFIA in fact “sets the stage to punish whomever the government decides are ‘illegitimate’ journalists”.

Tricia Todd writes in the Huffington Post that FFIA “specifically targets those who publish in what some members of Congress would deem questionable outlets, such as watchdog groups or independent blogs”. She points out that FFIA ”would not necessarily cover an independent journalist like Alexa O’Brien, who almost single-handedly ensured in-depth investigative reporting on the Chelsea Manning trial. Ironically, major news outlets that couldn’t bother to send a reporter to court frequently cited much of O’Brien’s ’blogging’.”

In an article for Truthdig, Shenkman describes FFIA as “part of a broader campaign to try to box out organisations that have the courage to give a voice to whistleblowers”. This is despite the fact that whistleblowers have been behind some of the most important journalism in recent years, exposing war crimes, human rights abuses and transnational mass surveillance.