Is freedom of the press under threat from data retention, mass surveillance and ever-encroaching national security and anti-terrorism legislation?
I t was after Edward Snowden revealed the extent of a global security program by the US Government that the United Nations decided to act.
Snowden became the most famous whistle-blower of modern times when he leaked more than a million files to journalists at The Guardian and The Washington Post. Like many other whistle-blowers, he paid a heavy price for revealing that the US had been indiscriminately spying on allies and enemies, terror suspects and its own population.
Snowden currently lives at a secret address in Moscow, after the Russian government accorded him asylum, following a period of a month in limbo, when he lived in the transit lounge at Moscow’s Sheremetyevo Airport.
Digital threats to journalism
At the time, University of Wollongong (UOW) research fellow Julie Posetti was about to start a secondment with the World Editors’ Forum in Paris. So when UNESCO decided to commission a report looking at the digital threats to journalism following the Snowden revelations, Posetti was given the job.
“They wanted to map the protections we have historically relied on in many democracies that prevent a journalist from revealing the identity of a source, other than in exceptional circumstances,’’ Posetti says.
Almost three years later, the report – Protecting Journalism Sources in the Digital Age – has been published and for those who believe in the important of free expression, it makes depressing reading.
Posetti found that, even in liberal democracies, almost 70 per cent of the 121 countries surveyed had experienced a worsening of the legal framework designed to protect journalists’ sources.
Opportunities of the digital world
Paradoxically, while states – including Australia – have used terrorism and other threats to national security as an excuse to erode protections, the use of technology has given us a golden age in investigative journalism.
Bradley (now Chelsea) Manning leaked 250,000 US diplomatic cables and almost half a million army reports on a simple CD that masqueraded as music by Lady Gaga. Like Snowden, Manning paid a heavy price for her actions, though was released in May after her sentence was commuted by President Barack Obama.
The point was made to Posetti by a former Fairfax journalist, Gerard Ryle, who was responsible for co-ordinating publication of the Panama Papers in his role as director of the International Consortium of Investigative Journalists.
I know investigative journalism happened before the invention of the phone, so I think we’re going back to that age, when the only safe thing is face-to-face contact.Alan Rusbridger
“Technology is allowing information to be leaked on a vast scale … for me as a journalist, we’re in boom times,’’ Ryle says. So the challenge for journalists and media organisations is to make use of the technology, without becoming a victim of it.
Posetti says a key point is that one of the fundamental tenets of journalism is the ability to secure confidential information. Martin Barron, the executive director of The Washington Post, has more experience than most in this issue, managing a news outlet that has used a series of leaks to inflict serious damage on the fledgling presidency of Donald Trump.
Avoiding surveillance in the newsroom
He told Posetti that concerns about surveillance of the newspaper’s internal communications had led to significant changes to newsroom practices.
“I didn’t expect that we would have to be communicating with each other in an encrypted fashion, and yet on many occasions, we did just that,” he says. “And on many occasions when we had meetings, everybody turned off their cellphone, or left their cellphones behind.’”
Posetti tells a story of one journalist in Argentina – a country where whistle-blowers have historically paid with their lives – travelling three hours into the desert and three hours back again, just to be able to meet a source without chance of surveillance.
Using the past to safeguard the future
Journalists are responding to the threat of surveillance by increasingly sophisticated use of technology, as well as regression to analogue methods such as handwritten notes.
Former Guardian editor Alan Rusbridger said that journalists needed to be aware that smartphones were both powerful tools for an investigative journalist, but could also be used as a tracking tool.
“I know investigative journalism happened before the invention of the phone, so I think maybe literally we’re going back to that age, when the only safe thing is face-to-face contact, brown envelopes, meetings in parks or whatever,” he said.
It’s not just a question of a journalist being able to do their job. It’s a question of members of our society who are interested in ensuring that truth comes to light.Julie Posetti
In parallel with this drive back to the future is the use of sophisticated electronic dropboxes by many news organisations, including The Guardian, The Washington Post and Fairfax.
The risks and the opportunities
While these have their place, Posetti says their use is limited by the technological sophistication needed to use them. Though there are techniques that journalists can use, the issue is how to communicate those techniques to potential sources.
“You have both enormous opportunities and significant risks,” she says. “The risk if you have a civil servant who is in the Australian Defence Force, for example, is that they have no clue how to do it in a secure way.
“If they email you from their work email, they’re immediately stuffed. I have had journalists tell me that they have avoided publishing mid-level stories because the first contact had already compromised the source.
“How do you contact your source in order to train them in digital security? The risks are everywhere.”
The importance of a legal framework
Perhaps the only real answer is a legal framework that protects both journalists, and others who are engaged in public interest journalism. One of the few optimistic areas in Posetti’s report in this regard is the situation in Sweden.
In that country, the freedom of the press is protected by the nation’s constitution, and the law makes it a criminal offence for a journalist to divulge the identity of their source. There are exceptions such as national security or high treason, but those exceptions must be weighed by a court of law.
A website or start-up – bloggers, for example – can choose to apply for what is called a ‘certificate of no legal impediment to publication’ to enjoy the same constitutional coverage as traditional media.
Swedish authorities are generally prohibited from seizing materials that may reveal the identity of a source, though with some exceptions.
The situation in Australia is not nearly as friendly to journalists, as can be seen from the recent case in which the Federal Police illegally accessed a journalist’s metadata during an investigation of a leak.
Illegal access blamed on ‘human error’
AFP Commissioner Andrew Colvin blamed human error and said the information did not reveal the content of the call, but simply the fact that the call was made, and the timing.
Under laws passed by the Abbott government, all metadata must be held by phone and internet providers for two years, and can be accessed in secret by government authorities.
The Human Rights Law Centre has called Australia’s metadata laws “the most oppressive in the western world’’, adding that it effectively allows enforcement bodies to watch everybody, all of the time, without them knowing.
Posetti says that without an adequate legal framework it is inevitable that even just the threat of greater digital surveillance will have a chilling effect on transparency. Though it is hard to quantify, the clear message from 50 editors, journalists and media lawyers from around the world is that sources have become more reluctant to contact journalists.
“All kinds of reporting are becoming much more difficult and more expensive … more time consuming,” former Guardian editor Alan Rusbridger says.
‘Massive drying up’ of sources
Increased risks of exposure, he said, has led to “a massive drying up of people willing to take the risk of talking to news organisations”. Posetti concludes by recommending an 11-point plan for creating a legal framework to protect journalistic sources.
The first point – ignored in much of the world that lies outside liberal democracies – is simply a recognition of the value to a society of source protection, and recommends that, like in Sweden, this is a value that should be embedded in law.
The second point is the adoption of a wide definition of journalism, to include acts of journalism by bloggers and the like. In addition, she recommends that states need to be aware of the chilling effect of bulk data recording, tracking, storage and collection.
The balance between security and expression
While she concedes that there is a balance to be struck between freedom of expression and national security, she believes the balance has swung too far in the past decade.
“There are lots of tensions here, but they are tensions that create significant costs,” she says. “This is fundamentally important, because it’s not just a question of a journalist being able to do their job.
“It’s a question of members of our society who are interested in ensuring that truth comes to light. When they have information about corruption or the abuse of power, it’s fundamental that they have confidence in the ability of journalists to keep that information secure, and their identity protected.
“Without that, we have a chilling effect on the exposure of information that powerful people want hidden.”