The Effects of Mass Surveillance on Journalism

Mass surveillance of the kind practiced by the NSA produces a chilling effect on journalism, because sources do not feel they can have a private conversation with a reporter. That’s the message of a group of scholars, journalists, and researchers from Columbia Journalism School and the MIT Center for Civic Media, in a public comment to the Review Group on Intelligence and Communication Technologies convened by President Obama.

The 15 page letter argues that mass surveillance is harmful to journalism and incompatible with existing law and policy. It goes on to document recent chilling effects, showing that real harm has already occurred.

“Put plainly, what the NSA is doing is incompatible with the existing law and policy protecting the confidentiality of journalist-­‐source communications. This is not merely an incompatibility in spirit, but a series of specific and serious discrepancies between the activities of the intelligence community and existing law, policy, and practice in the rest of the government. Further, the climate of secrecy around mass surveillance activities is itself actively harmful to journalism, as sources cannot know when they might be monitored, or how intercepted information might be used against them.”

The letter documents how NSA’s domestic phone and internet surveillance activities contradict recent Department of Justice policy. The DoJ released new guidelines regarding access to reporter-source communication records in July, after a review prompted by the secret seizure of records for 20 Associated Press phone lines. The new guidelines say that “the Department views the use of tools to seek evidence from or involving the news media as an extraordinary measure” and requires advance notification to journalists in most cases, to give them the opportunity to contest the matter. It also requires Attorney General approval for searches and seizures.

The NSA operates with far greater latitude. It preemptively collects and archives the records of all calls made to or by journalists, effectively bypassing both the notice and the authorization provisions of the DoJ policy. The NSA operates under “minimization” procedures designed to protect the confidentiality of Americans’ communications obtained by warrantless surveillance, but these rules contain an important exception: the NSA can report many different types of crimes to law enforcement authorities.

The letter argues that this double standard is intolerable: “there must be one set of rules, and those rules must protect journalist-­‐source communications.” The authors also reject the logic of the Foreign Intelligence Surveillance Court when it asserts that collecting information on everyone is no different, from a privacy point of view, than collecting information on specific individuals.

“The surveillance of essentially everyone has effects far beyond the surveillance of journalists alone. … For a free press to function we must also protect the means of communicating with a journalist. At the present time, the NSA has made private electronic communication essentially impossible.”

This state of affairs has made sources nervous about talking to reporters. Journalists from news organizations including the Associated Press, the Washington Post, the New York Times, and the Center for Public Integrity have recently reported chilling effects. As quoted in a newly released report of the Committee To Protect Journalists, New York Times national security reporter Scott Shane describes the problem:

“There’s a gray zone between classified and unclassified information, and most sources were in that gray zone. Sources are now afraid to enter that gray zone. It’s having a deterrent effect. If we consider aggressive press coverage of government activities being at the core of American democracy, this tips the balance heavily in favor of the government.”

Mass surveillance is not merely a theoretical risk to a free press, but has real consequences that are already preventing journalists from doing their job.

The comment was prepared by a group of  journalists and scholars with experience in investigative journalism, online media, and data mining, including Tow Center Director Emily Bell, Toni Stabile Center for Investigative Journalism Director Sheila Coronel, Tow Center Fellow Jonathan Stray, and Professor Michael Schudson of Columbia Journalism School, and Ethan Zuckerman, Director of the MIT Center For Civic Media.