Large-scale surveillance restrains US-based journalists

by Daya Gamage

Large-scale US surveillance is seriously hampering US-based journalists and lawyers in their work. National Security Agency (NSA) surveillance is undermining media freedom and the right to counsel, and ultimately obstructing the American people’s ability to hold their government accountable. Government surveillance and secrecy are undermining press freedom, the public’s right to information, and the right to counsel, all human rights essential to a healthy democracy.

Above is the gist of what was found about right to dissent, media freedom and bringing the government to account within the United States in a major report now released.

Elaborate steps

Human Rights Watch and the American Civil Liberties Union in a 120-page report, “With Liberty to Monitor All: How Large-Scale US Surveillance is Harming Journalism, Law, and American Democracy”, released on July 28, based their findings on extensive interviews with dozens of journalists, lawyers and senior US government officials. It documents how national security journalists and lawyers are adopting elaborate steps or otherwise modifying their practices to keep communications, sources, and other confidential information secure in light of revelations of unprecedented US government surveillance of electronic communications and transactions.

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' behaviour that might betray an intention to leak information.

Report

The virtually inescapable government surveillance exposed by NSA whistle-blower Edward Snowden has impaired if not eliminated the ability of news-gatherers and attorneys to communicate confidentially with their sources and their clients, the joint HRW-ACLU report states.

“If the US fails to address these concerns promptly and effectively,” report author G. Alex Sinha writes, “it could do serious, long-term damage to the fabric of democracy in the country.”

When journalists can’t do their jobs, the effect is felt well beyond the profession alone. Insufficiently informed journalism can “undermine effective democratic participation and governance,” the report stated.

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.

Scared

Journalists interviewed for the report said that surveillance intimidates sources, making them more hesitant to discuss even unclassified issues of public concern. The sources fear they could lose their security clearances, be fired, or – in the worst case – come under criminal investigation.

“People are increasingly scared to talk about anything,” observed one Pulitzer Prize winner, including unclassified matters that are of legitimate public concern.

Many journalists described adopting elaborate techniques in an environment of tremendous uncertainty in an effort to protect evidence of their interaction with sources. The techniques ranged from using encryption and air-gapped computers (which stay completely isolated from unsecured networks, including the Internet), to communicating with sources through disposable “burner” phones, to abandoning electronic communications altogether. Those cumbersome new techniques are slowing down reporters in their pursuit of increasingly skittish sources, resulting in less information reaching the public.

Concern

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, Human Rights Watch and the ACLU found.

Journalists expressed concern that, rather than being treated as essential checks on government and partners in ensuring a healthy democratic debate, they may be viewed as suspect for doing their jobs.

One prominent journalist summed up what many seemed to be feeling: “I don’t want the government to force me to act like a spy. I’m not a spy; I’m a journalist.”

The US has an obligation to protect national security, and under human rights standards, it may engage in surveillance to that end, but only to the extent that surveillance is lawful, necessary, and proportionate, and the least intrusive means to protect against tangible threats to national security.

Many existing surveillance programs are indiscriminate or overboard, and threaten freedom of expression, the right to counsel, and the public’s ability to hold its government to account.

Programs allowing surveillance of non-US persons offer even fewer protections. The US should reform its surveillance programs to ensure that they are targeted and legitimate, increase transparency around national security and surveillance matters, and take steps for better protection of whistle-blowers and the media, Human Rights Watch and the ACLU said.

“The US holds itself out as a model of freedom and democracy, but its own surveillance programs are threatening the values it claims to represent,” report author G. Alex Sinha said.

“The US should genuinely confront the fact that its massive surveillance programs are damaging many critically important rights,” he said.

The Ministry of Defence refuted Colombo's American Embassy's recent pronouncement alleging that the Government was curbing the right to dissent and accountability.

Allegations

The full text of Military spokesman Brigadier Ruwan Wanigasooriya issued July 28 on behalf of the Defence Ministry:

“Departing from all accepted norms of respectful engagement, which should characterize diplomatic exchanges between countries, the US Embassy officials in Colombo, continue to make allegations against the Government of Sri Lanka through a section of the press and social media.

The attempt appears to be to sensationalize issues rather than find answers to certain concerns that they may have on issues in the country.

It is emphasised that this kind of action does not support meaningful engagement at any level.

No evidence

“The latest comes in the form of comments made by the Embassy spokesperson regarding the Commission of Inquiry on disappearances and the recent appointment of an international advisory panel. The broad, sweeping allegations made by these officials therein, are without any factual basis.

“In its comments, while welcoming a credible investigation, the US Embassy spokesperson says that there are “numerous reports of widespread threats and intimidation by security forces against witnesses and potential witnesses to the Commission”. To date no evidence to substantiate this claim has been brought to the attention of any Government authority. If indeed the US Embassy was genuinely concerned regarding threats to witnesses, specific details of such incidents and reports should have been made available to the Government for a response. The Government of Sri Lanka rejects unreservedly these baseless and uncorroborated statements and repeated attempts by the US Embassy in Colombo to malign the conduct of Sri Lanka’s security forces.

Sensitivity

“Furthermore, it is reported that the Embassy spokesperson expressed concerns on continued attacks against journalists and members of religious minorities, as well as the weakening of the rule of law and increasing impunity for illegal actions. This gives the impression that journalists and members of religious minorities are attacked in Sri Lanka, on daily basis, whilst no action is taken by the Government to enforce law and order and bring perpetrators to justice. Given the sensitivities involved in issues related to religious minorities which impacts on peaceful coexistence among communities in the country, the Government regrets the negligent comments being made by US Embassy officials which are clearly directed towards inciting and aggravating issues. There has also not been a single attack on journalists reported in the past few years.

"It may be noted that all people living in Sri Lanka enjoy freedom of religion, which is a constitutionally guaranteed right. The Government of Sri Lanka remains committed to ensuring that this right is protected. This is evidenced by the action taken to address reported incidents of disturbances in the recent past.

Dialogue

"Action has been taken on those who have contravened the law of the land, once sufficient evidence has been gathered for prosecution. More broadly, religious leaders of all faiths have been consulted at the highest levels in arriving at a mutually acceptable solution to issues that have arisen. In keeping with Sri Lanka's societal, cultural and historical norms, regular dialogue continues to take place at various levels to ensure interfaith harmony and understanding amongst its diverse populace.

"It is therefore unfortunate that isolated, sporadic and media-sensationalised incidents have been misinterpreted as representative of an overall weakening of the rule of law and impunity for illegal actions. However, these routine law and order issues are similar to those faced by many other countries, including the USA and are not endemic to Sri Lanka.

The criminal justice system practiced in Sri Lanka has many built in safeguards including the presumption of innocence and the burden of proof being beyond reasonable doubt for successful prosecution.

Justice

As a case in point, there are even instances of senior LTTE cadres being released due to lack of evidence. Such and other instances should not be interpreted as unwillingness on the part of the Government to bring perpetrators to justice.

"The Government has asserted clearly on many occasions that if reliable evidence is available in respect of any contravention of the law, the domestic legal process will be set in motion. In this context, the USA is encouraged to share with the Government any specific and credible evidence it has regarding any issue of concern, which will then be duly investigated.

"It appears the US Embassy officials are unaware of the factual position with regard to strengthening of democratic freedoms since the end of terrorism in May 2009.

The successful completion of so many elections in the North and East, including the Northern Provincial Council election in 2013, is significant in several respects.

In particular it is an important milestone in the Government's policy of restoring full democratic rights to the people in areas previously dominated by a terrorist group.

"During the three decades of the terrorist conflict, the LTTE did not allow Sri Lankans in parts of the North and East to exercise their democratic rights. Resuscitating democracy in these areas following their liberation during the Humanitarian Operation was one of the key concerns of the Government in the post conflict period.

"Certain undemocratic armed groups and members thereof have also successfully transitioned into the democratic mainstream.

Peaceful

The restoration of law and order and civil administration in these areas in fact strengthened Sri Lanka's proud democratic traditions and, therefore, the concerns of the US Embassy on these issues are misplaced.

"The US Embassy officials should revisit the 1987-89 period where an insurrection led to numerous deaths taking place across Sri Lanka and compare that to the current peaceful conditions that exist and desist from indulging in exaggerated statements.

"Sri Lanka believes that sustainable peace and reconciliation should be achieved through a home grown process based upon its social, cultural and historical context.

Because Sri Lanka is a multi-ethnic, multi-religious and multi-cultural nation, the process of reconciliation cannot be a response to the concerns of a particular community.

"Rather, it should be one that is acceptable to all Sri Lankans regardless of their ethnicity or affiliation. The bringing together of communities which have suffered through 3 decades of terrorism requires time and cannot be rushed in accordance with external agendas, nor made to conform to artificial timelines.

"In this context, it is particularly unfortunate to note that perceptions of the US Embassy officials about reconciliation in Sri Lanka seem to be fashioned primarily on the interests of pro-LTTE diaspora and likeminded elements within the country.

Such perceptions largely ignore the ground realities as well as the tremendous progress that has been made in Sri Lanka in recent years."