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The shadows of the spooks

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AP photo by J. Scott Applewhite Demonstrators rally at the Capitol to protest spying on Americans by the National Security…

AP photo by J. Scott Applewhite

Demonstrators rally at the Capitol to protest spying on Americans by the National Security Agency, as revealed in leaked information by former NSA contractor Edward Snowden, in Washington, D.C., on Oct. 26.

For an investigative reporter like David Barstow of The New York Times, the revelation that the National Security Agency collects massive amounts of phone and e-mail data makes once routine job tasks — from finding sources to communicating with editors — much harder.

“It’s been the single most destructive thing that I can remember in my 27 years of being a reporter,” said Barstow, who twice won the Pulitzer Prize for Investigative Reporting. “It creeps in every day into my thought process, into my work, into every phone call I make, into every e-mail I write.”

Since The Washington Post and The Guardian first broke stories in June based on leaked classified documents from former NSA contractor Edward Snowden, reports about the types of information the government collects have dominated the news. The Obama administration has maintained that it only uses the data to hunt for terrorists, and has started to make available court opinions that describe the legal basis for the surveillance. Still, many journalists and media lawyers worry that details about reporters’ sources — from who they are to when they were interviewed — could get caught in the mix.

“Once you know that the NSA is potentially tapping conversations between journalists and sources, that’s all I need to know to be worried,” said Charles Tobin, a media lawyer at Holland & Knight in Washington, DC. “I’m less concerned about what they’re doing with the information than I am that they are gathering it in the first place.”

This worry, reporters say, affects the strategies they use when arranging interviews — and whether or not sources will agree to speak with them at all.

“I have absolutely no doubt whatsoever that stories have not gotten done because of this,” Barstow said of NSA surveillance programs’ impact on journalism.

Background on the programs

The first bombshell came in June when news outlets, relying on Snowden’s documents, reported that the NSA has been collecting telephone “metadata” — including phone numbers, timing and duration of calls but not content — of millions of Americans since the Bush administration. The government has said that it only searches these logs when it has a “reasonable, articulable suspicion” of terrorist activity, according to news reports.

The same month, the public learned that the United States is tapping into the servers of nine communications companies to collect e-mail messages, audio, video and connection logs from foreign users who may pose a national security threat. PRISM, as the program is known, gets data from Microsoft, Yahoo, Google, Facebook, Paltalk, AOL, Skype, YouTube and Apple, although most of these companies have disputed the descriptions of their cooperation.

AP Photo by Carolyn Kaster

From left, National Security Agency Director Gen. Keith Alexander, Director of National Intelligence James Clapper, and Deputy Atty. Gen. James Cole are sworn in on Capitol Hill prior to testifying before the Senate Intelligence Committee hearing on the Foreign Intelligence Surveillance Act, and National Security Agency call records.

In August, The New York Times reported that the NSA is systematically searching the contents of e-mail messages sent between American and overseas contacts. The Wall Street Journal, meanwhile, wrote that the agency can collect the content of 75 percent of U.S. Internet traffic directly from fiber optic networks.

This fall, news outlets reported that the NSA, if it has a foreign intelligence justification, can piece together a variety of U.S. citizens’ records — such as e-mail, phone and GPS logs as well as bank information and Facebook profiles — into diagrams that show a clearer picture of people’s social connections.

The government has emphasized that reviews of e-mail messages are focused on national security, and that telephone surveillance efforts do not track content. Still, call logs and the like can be “very revelatory,” said Laura Handman, a media lawyer at Davis Wright & Tremaine. That’s the type of information investigators used to identify former FBI agent Donald John Sachtleben as the person who, in May, leaked details of a foiled terrorist plot to the Associated Press. When the Justice Department announced in September that Sachtleben had agreed to plead to a 43-month sentence for the leak, it said it used AP phone records only after interviews with more than 500 people proved fruitless.

Sachtleben is the subject of the Obama administration’s eighth leak-related prosecution. No link has been shown between the NSA programs and these investigations: the government obtained the AP phone records through a secret subpoena of more than 20 of the company’s telephone lines. Still, for some investigative reporters who cover national and international news, the effects of surveillance — especially when combined with the rising number of leaks cases — are tangible.

Reporters interviewed say they and others they know have lost sources; written fewer investigative pieces; and have had to change the way they interact with potential interview subjects and editors to try to keep their communications off the grid.

“Like a drug dealer”

Jailed in 2005 for refusing to reveal a confidential source, former New York Times reporter Judith Miller is no stranger to government interest in her source relationships. She worries that this summer’s revelations are deterring reporters from investigative work and causing sources to clam up.

“There’s a reason that fewer and fewer investigative news stories are being broken,” said Miller, who now reports for Fox News and other outlets. “It’s just that people are scared.”

Once routine tasks also take more work. For instance, a journalist might not want to e-mail or call an editor with updates about an interview for fear of surveillance. At The Washington Post and The New York Times, data security specialists are training reporters on how to use encryption technology, staff at both outlets said.

Reporters also must be cautious of storing even “remotely sensitive documents” on computer servers, said Mark Horvit, executive director of Investigative Reporters and Editors, Inc., a training center at the Missouri School of Journalism.

And for a while, journalists covering sensitive subjects have been cautioned to use disposable cell phones and to avoid putting names of confidential sources in e-mail messages and other documents, Handman said. More than anything, though, reporters are realizing “now more than ever the value of face-to-face communications,” she added.

Miller said she is working on fewer investigative pieces because she has to commute from her home in New York to Washington, D.C. to conduct clandestine, in-person interviews.

“I’m beginning to feel like a drug dealer, [with] the cell phone that I bought with cash or the SIM card that’s not traceable to me,” Miller said.

Barstow, who won a Pulitzer this year for stories on a large-scale bribery cover-up by Wal-Mart, said the chill does not just affect national security reporting. “Anyone who works remotely for the federal government is basically freaked out,” he said, as are corporate directors and non-governmental organization employees that are involved in publicly controversial topics.

To Horvit, the problem is that reporters and sources do not know what the government considers a national-security threat, and, by extension, what gets caught in its web of surveillance review.

“It’s knowing that they’re looking and not knowing what they’re looking for that makes this a much broader issue,” he said.

Obama promises safeguards

In an August speech, President Obama sought to ease surveillance anxiety by outlining four steps aimed at making the NSA more transparent. First, he said he would work with Congress to place greater oversight on Section 215 of the Patriot Act, the provision that authorizes the phone-data collection program.

Next, he pledged reforms to the Foreign Intelligence Surveillance Court, which decides the constitutionality of many NSA programs. Press advocates and others have criticized the FISA Court for keeping its opinions secret and for only having one side — the government — argue cases before it. Obama said he would take steps to allow an adversary to argue before the court “in appropriate cases.”

Third, he instructed intelligence officials to make more information about their programs public. The FISA Court has since declassified select opinions, including one that explained that call-log collection program is constitutional because it does not include content and because Section 215 allows for searches of business records relevant to a foreign intelligence investigation.

Finally, Obama formed a group of outside experts to review surveillance programs and write a report by the end of the year.

Through the summer and fall, the government has maintained that it is using the surveillance data for terrorist investigations and other national security concerns, such as nuclear proliferation and cyber attacks. Recent reports, however, have brought to light numerous abuses of the system.

An internal NSA audit from 2012, which The Washington Post published in August, revealed that the agency conducted unauthorized searches of people in the United States thousands of times each year since 2008. In a separate Post story, FISA Court Chief Judge Reggie B. Walton said his court “does not have the capacity to investigate issues of noncompliance.”

Government documents released in September showed that the NSA regularly searched call logs of about 15,000 numbers without a reasonable, articulable suspicion of terrorism for three years until March 2009.

The government has emphasized that the bulk of these violations are due to human error or the complexity of the surveillance programs. Still, many media lawyers and journalists are left wondering if these reassurances are enough.

“I think it will all boil down for reporters as well as for every other citizen to the extent to which you can take the government at its word that the information it’s collecting is being used only for the purposes of tracking foreign terrorists,” said Lee Levine, a media attorney at Levine Sullivan Koch & Schulz in Washington, D.C. “There’s a certain amount of queasiness related to any government action the propriety of which devolves down to the assertion that you should just trust us.”

Moreover, what if the government discovers a leaker in the course of investigating a potential terrorist? George Freeman, an attorney with Jenner & Block who was in-house counsel at The New York Times for more than 30 years, wondered if officials would then be licensed to start pouring through reporters’ call and e-mail logs.

“I don’t think we have trust or faith enough to think that might not happen,” he said.

Stronger safeguards needed

Many media lawyers say stronger safeguards are needed than the ones Obama announced in August.

In suggestions submitted to Obama’s surveillance review group this fall, the Reporters Committee for Freedom of the Press, joined by 36 news organizations, asked the government to do a better job explaining how it uses journalists’ records. It also recommended that the FISA Court apply heightened scrutiny when determining if material that the government seeks from media outlets is related to terrorist investigations; and that it regularly release decisions of precedential value.

Additionally, the coalition suggested that the FISA Court appoint a permanent “attorney advocate” to advance the media’s point of view as journalists are not told if they are the subject of a request to the secret court.

Media lawyers also are calling for reform outside of the FISA Court. For Levine, legislation that specifically prohibits tracking reporters would be ideal. Next best, he said, would be Department of Justice guidelines on surveillance similar to the ones issued on journalist subpoenas this summer.

Tobin, of Holland & Knight, said the proposed federal shield law should reach the entire intelligence apparatus. News organizations must be notified of searches and receive heightened protection in the courts, he added.

“Only in the highest, most exigent level of alarm should the journalist be kept in the dark that their information is being monitored,” Tobin said.

Despite these pushes for more protection, Barstow, at The New York Times, worries that the damage, including lost sources and unwritten stories, has been done.

“The only way that it can be undone is if we can have some assurance that our digital lives are beyond the reach of the government,” he said.