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.