Journalism Isn't Safe Anymore: The Lesson Of 'Citizenfour'
“I don’t feel confident I can protect source material in the United States right now.”
We’re all aware of the revelations surrounding the Edward Snowden leaks. The National Security Agency has the capacity to collect and store any and all electronic activity by every American citizen – and most of the digitally literate world – and they’ve been using that power indiscriminately.
Yes, this is a governmental overstep. As per the Bill of Rights, “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause.”
It doesn’t take a brilliant legal mind to understand that the searches and seizures of our digital property directly violate the Fourth Amendment – and the FISA court rulings are hardly held to the same standard as open court when it comes to the asking for, and receiving of, warrants for these searches and seizures. Moreover, as outlined by the Sixth Amendment, Americans have the right “to be confronted with the witnesses against them” when charged with a crime, and one can't really be confronted by a video camera or an Internet spy program.
This conversation has happened. There really isn’t much that I can add to an already widely discussed issue with valid arguments existing on both sides – the dismantling of the NSA is a folly of delusional libertarianism; it’s a necessary program for the detection and detainment of severe and widely unknown threats to the security of the nation. That said, it must play by the rules of the Constitution under which it was formulated. Both are correct; both have merit; both have been frequently hashed out in the public sphere since the Snowden leaks.
There’s a conversation that’s not occurring, though, and it’s my main takeaway from “Citizenfour” – an incredible piece of video journalism by Laura Poitras, who is quoted above. And there is a conversation that should be happening in the same spirit as that quote in the aftermath of the Snowden leaks.
I don’t feel confident I can protect source material in the United States right now.
READ MORE: 11 Ways America Was Still Backwards In 2013
Investigative journalism isn’t safe in America anymore. It’s not safe for the writers, and it’s certainly not safe for their sources. And, as a journalist – hell, as someone who values truth over state-sponsored deception – that’s terrifying.
This isn’t some kind of crazed conspiracy theory either. Let’s examine the case study of the Snowden leaks themselves to prove it.
Whistleblowing Is Inherently Criminal
It’s important to recognize the specific charges brought against Edward Snowden, the man who told the country that their rights are being violated by the very government that exists to uphold them. Snowden was charged under the 1917 Espionage Act – an act passed at a time when individual acts of espionage on behalf of adversarial nations was a viable form of gaining information, making such information gathering and dissemination to those adversarial states illegal. A perfectly reasonable act for the time; perhaps a little outdated today.
The interesting thing about the Snowden case is that he wasn’t directly charged with “espionage.” Rather, he was charged under one specific paragraph in the Espionage Act, paragraph 793(d). The paragraph reads:
Whoever, lawfully having possession of, access to, control over, or being entrusted with any document, writing, code book, signal book, sketch, photograph, photographic negative, blueprint, plan, map, model, instrument, appliance, or note relating to the national defense, or information relating to the national defense which information the possessor has reason to believe could be used to the injury of the United States or to the advantage of any foreign nation, willfully communicates, delivers, transmits or causes to be communicated, delivered, or transmitted or attempts to communicate, deliver, transmit or cause to be communicated, delivered or transmitted the same to any person not entitled to receive it, or willfully retains the same and fails to deliver it on demand to the officer or employee of the United States entitled to receive it...Shall be fined under this title or imprisoned not more than ten years, or both.
Daniel Ellsberg, who himself was in a position to be charged under the same paragraph after he leaked the Pentagon Papers in 1971, wrote the following in an email his colleagues on the Board of Directors of the Freedom of the Press Foundation: “Other parts of [paragraphs] 792, 793 and 794 deal with real espionage; paragraph 793(d) could too, potentially, but has been used almost exclusively not for espionage but for unauthorized disclosures of classified information, starting with me in 1971, and all of Obama’s prior prosecutions of leaks.”
This might seem insignificant were it not for the context of the law. Ellsberg's email goes on to explain that the act as a whole was meant to focus on “secretly conveying defense information to a foreign power, especially an enemy in wartime, with intent to help that power or harm the U.S.”
Snowden’s leak, however, was not to a foreign government, but to journalists – the two primary journalists being American. As the law is being interpreted, journalists are seen as either foreign operatives – an idea so deranged it borders on comical – or, in a broader sense, enemies of the state that pose a threat to the United States and its security.
The best opinion I’ve read on this phenomenon – and I couldn’t say it better myself – comes from James Goodale, general counsel to the New York Times when they were printing the Pentagon Papers. He wrote the following in his book, “Obama apparently cannot distinguish between communicating information to the enemy and communicating information to the press. The former is espionage, the latter is not.”
The treatment of the press as the enemy is astonishing, and is more closely aligned with the ideology of an oppressive, authoritarian regime than democracy, particularly American democracy.
But this interpretation of the Espionage Act is being used indiscriminately when it comes to press leaks. According to the New York Times, Snowden is the seventh person the Obama Administration has prosecuted under the same statute. Incredibly, the Obama Administration has also trumpeted the fact that they’ve prosecuted whisteblowers: the Obama 2102 campaign website boasts the prosecution of more than double the amount of leak-related Espionage Act cases than any other administration.
It seems like something out of a novel, but providing evidence of governmental malpractice is now all-but-illegal under an ambiguous segment of an antiquated act.
Regardless of the government's own legal standing, the perception of “whistleblowers” is that they are criminals because they do not follow the laws – all because the government says that they are. That power over public perception is scary, and manifests in significant ways.
Before the documentary was released, I had heard any number of accusations against Edward Snowden. He’s a spy; he’s working with Russia; he dumped all of the documents at once and is putting American lives at risk overseas – any number of falsehoods that were disproved with a simple video of what actually occurred in that hotel room in Hong Kong. Whistleblowers are losing the public relations battle, probably because they do not have equivalent resources or manpower to the government.
Persecution and maltreatment are unfortunately not limited to the whistleblowers. Glenn Greenwald and Laura Poitras were, like Snowden, incredibly brave in reporting on the leaked documents. Greenwald and Poitras faced cries from both politicians and other journalists to have them arrested for aiding and abetting Snowden, or worse, charged with the same crime as Snowden. For a great deal of time they were afraid to return to the United States, fearing detainment. David Miranda, Greenwald’s partner, was detained and questioned for nine hours in London's Heathrow Airport under the British Terrorism Act – and he had nothing to do with either receiving the leaked documents or writing any of Greenwald’s justifiable stories.
Another high profile activist for transparency, Julian Assange, is currently in a similar position to Snowden. While it's harder to call him purely a journalist like Greenwald or Poitras, WikiLeaks has uncovered a wealth of information, much of which is valuable to the public to understand the conduct of their elected officials. Obviously, Assange is wanted for far more serious crimes than Espionage. That said, it's incredible that his actions have been treated more like a threat to the state than an ally to the public – and that speaks volumes about how the perception of whistleblowers and those who provide them the platform to tell their stories is skewed.
READ MORE: WikiLeaks And Digital Activism After Assange
Perhaps most chillingly of all, the Justice Department swept through the Associated Press offices in June 2013, seizing more than two months of phone and communication records in order to find the source of a potential national security leak. Be the context what it may, allowing the DOJ to subpoena records unilaterally in a closed court without consulting the Associated Press first results in the breakdown of trust between journalists and their sources – and without the trust and faith of their sources, journalists have no material with which to do their job. If communication records are now fair game for the government to subpoena whenever they don’t like a story, a dangerous precedent has been set.
We Can't Let This Happen
This brings me to my final point in response to the revelations of "Citizenfour." I’m not sure if the American public does not value journalism anymore or whether stories about the Obama Administration doubling down on Bush-era secrecy by punishing anyone who attempts to reveal government overreach are too boring for us to read. But let me make this very clear: our democracy cannot function without freedom of the press, and the precedent being set by the Obama Administration directly opposes that freedom.
No government likes bad press. It’s bad for politics, it’s bad for governing; there’s really no upside to a scandal. That said, the ability to report on poor decisions that threaten the basic rights of the American public is the only tool we have to combat totalitarian rule. Checks and balances are beneficial, but between gridlock on Capital Hill, the pace of the court system and the fact that the most impactful decisions are made internationally in our globalized world, the President and the organizations underneath him have more power than ever. We need an unabridged, inalienable right to the freedom of the press – which includes freedoms for not only journalists but for their sources as well – if the truth is to be told to the American public so that they can make informed decisions at the voting booth.
After all, the key to a healthy democracy is an informed electorate – and the people in power will only tell us what’s beneficial to them if we allow them control over information.
People say journalism is a dying field, and that might be true. But, if the stories of Edward Snowden, Glenn Greenwald and Laura Poitras are to be understood as a case study of modern investigative journalism, then the truth is that journalism isn’t dying of natural causes. People still have the moral compass and the mental fortitude to oppose the government when it is in the wrong.
No, mainstream, trustworthy journalism isn’t dying peacefully in its sleep. It’s been dragged into the bathroom and is in the process of being forcibly drowned in the bathtub.
And the worst part is, the American public is sitting right in the next room.
Laura Poitras can no longer do her job as she once did. The Associated Press can no longer do its job as it once did. I doubt if any source would give information to an entity whose communication records could be subpoenaed at any time. The American government under Barack Obama has bullied journalists and their sources to the point where I wouldn’t blame people if they stayed silent.
The evidence is there that the process of putting a muzzle on the press is starting, and the American people cannot stand for it. I implore everyone who reads this piece to share it with everyone they can – because the attempted murder of investigative journalism from reliable media outlets is far too important to ignore.
Reach Columnist Steve Helmeci here.