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The NSA’s shadow

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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.

Though President Obama pledged reforms of National Security Agency programs in a January speech, some media lawyers say the changes will do little to thaw a surveillance-induced chill that has enveloped some reporter-source relationships.

“What remains after the president’s speech is a fairly robust freedom to do data collection,” New York Times Assistant General Counsel David McCraw said.

Since stories about mass telephone and e-mail surveillance broke, reporters have come forward to say that these programs ­– combined with the government’s vigorous leaks investigations – are scaring some sources from talking with them. In reports by the Reporters Committee for Freedom of the Press and the Committee to Protect Journalists, numerous journalists said the chill affects not just the national-security beat but also coverage of other controversial topics inside and outside of the government.

“There is a big cloud hanging over people,” said Dana Priest, a Washington Post investigative reporter who focuses on national-security issues. “They just don’t know to what extent the government goes to figure out who is talking to reporters.”

Obama’s Jan. 17 speech on the NSA did little to answer that question: he never mentioned journalists in his remarks or in the policy order he released that day.

Similarly, two district courts did not address reporters’ concerns when they issued opinions on the legality of the government’s bulk collection of phone metadata in December. The U.S. District Court for the District of Columbia deemed this program unconstitutional but the federal court in New York City found it legal. The opposing conclusions – and the prospect of a lengthy appeals process – add to the aura of uncertainty.

Obama’s NSA reforms

Obama sought to clarify the limits of NSA programs in his speech by emphasizing that the government only searches the data for “legitimate national security purposes.”

To Priest, though, that wording is nothing new and offers little guidance to reporters. “That’s the vaguest kind of language they could use,” she said. “Frankly, to me, it doesn’t mean anything.”

Obama did announce a series of reforms that responded in part to the more than 40 recommendations that a panel he appointed, the President’s Review Group on Intelligence and Communications Technologies, issued in December.

Perhaps the most headline-grabbing change was the president’s pledge to end the government’s storage of bulk surveillance records. Obama is instructing officials to find a way for private companies to hold these materials.

While some reports have heralded this switch as a win for privacy advocates, Electronic Frontier Foundation senior staff attorney David Greene said it will do little for journalists because call and email data will still be accessible.

“It requires the government to take another step, but I don’t know that it will make anyone feel a whole lot better that their information will remain confidential,” Greene said.

Obama also mandated that the government limit searches of phone records to people two steps removed – instead of three – from an individual suspected of terrorist ties. Greene said this change also will have little effect on reporters, who likely are within the “inner-circle” of communications that the government can still investigate.

Obama did not address the panel’s suggestion that the NSA not undermine efforts to create encryption standards. He also declined the review group’s recommendation that officials must get court approval to search contents of Americans’ email and phone messages that the government incidentally receives through programs such as PRISM, which targets international communications. He did, however, direct officials to consider additional reforms on the content-collection programs.

The president also required officials to annually review opinions of the Foreign Intelligence Surveillance Court for declassification. That court, which meets in secret and now only hears argument from the government, approves surveillance warrant requests and issues other decisions on the legality of NSA programs. The ACLU, ProPublica and some other groups are involved in litigation to get the court to release more of its rulings.

Obama also said he would create a panel of advocates to represent privacy concerns in specific cases before the FISA Court. The Reporters Committee and 36 news organizations have joined together to call for that type of position to advance the media’s point of view, as journalists are not told if they are the subject of a request the court. But Obama’s public advocate will only be present in cases involving “novel and important” privacy law issues, and cannot monitor the court’s docket to decide which issues meet those criteria.

To McCraw of The New York Times, the public advocate is a “plus” for reporters. But, he said, the reforms are targeted mainly at the civil-liberties concerns of the general public, and not at the specific needs of journalists.

“Without some sort of legal framework that acknowledges the special place that reporters play in the constitutional universe, our specific issues aren’t going to be addressed,” McCraw said. “It’s great that they’re expanding the rights we have as citizens, but reporters play a special role and the procedures should reflect that.”

Policy review groups warn of chill

Though Obama’s speech did not single out journalists, reports by both his review group and a separate advisory board, the Privacy and Civil Liberties Oversight Board, warned that unhinged surveillance can affect newsgathering.

The Review Group on Intelligence and Communications Technologies, which includes five attorneys and intelligence experts, wrote in its 300-page report that a “robust and fearless freedom of the press is essential to a flourishing self-governing society.”

“It will not do for the press to be fearful, intimidated, or cowed by government officials,” the review group wrote.

The other committee, an executive branch body that advises the president, concluded in a January report that NSA surveillance programs deter confidential sources from speaking to journalists.

“The Board believes that such a shift in behavior is entirely predictable and rational,” the Privacy and Civil Liberties Oversight Board wrote. “Although we cannot quantify the full extent of the chilling effect, we believe that these results ­– among them greater hindrances to political activism and a less robust press – are real and will be detrimental to the nation.”

Uncertainty in the federal courts

Another high point for journalists was the Dec. 16 holding of the U.S. District Court in Washington, D.C., in Klayman v. Obama that the bulk collection of phone metadata – which includes phone numbers, timing and duration of calls, but not content – violates the Fourth Amendment.

In Klayman, Judge Richard J. Leon called the NSA’s technology “almost-Orwellian” and said Founding Father James Madison “would be aghast” at the encroachment on individual liberties.

Though Leon did not mention the concerns of journalists, McCraw said the opinion’s harsh critique of surveillance validates the reporting that has been done on the subject.

“These matters deserve to be exposed because, as the D.C. court says, they are illegal,” McCraw said.

In ACLU v. Clapper, Judge William H. Pauley III of federal court in New York City found the phone metadata program constitutional, calling it “the Government’s counterpunch” to al-Qaeda. The Dec. 27 opinion did not single out journalists, but it did dismiss as a “parade of horribles” the ACLU’s claims that surveillance reveals people’s political and religious associations and, therefore, can chill group membership.

Both opinions relied on Smith v. Maryland, a 1979 case that found constitutional the police installation on a person’s phone of a “pen register,” a device that collects call logs. The Supreme Court there explained that seizing these records does not violate a person’s “reasonable expectation of privacy” because it is generally known that a third party – the phone company – keeps this information anyway.

The Klayman court reasoned that Smith does not control because the search there was limited and because people’s use of telephones has changed in the past 35 years. ACLU held that Smith’s underlying logic applies even if the scope of the surveillance is different.

Leon suspended his order in Klayman to stop the metadata program as the government is appealing the decision. ACLU is on appeal too, and a third case – First Unitarian Church of Los Angeles v. NSA – has not been decided. The Electronic Frontier Foundation brought that challenge in federal court in San Francisco on behalf of more than 20 advocacy groups who claim, among other things, that metadata collection violates their First Amendment right of association. The Reporters Committee has filed amicus briefs on behalf of media coalitions in both the ACLU case and the First Unitarian case.

Absent a mandate from the courts or a clear answer from the government about how and when journalists’ communications are being surveyed, reporters and sources are left with questions about how secure their communications are.

To Priest, the best way to get answers and spur reform may be for reporters themselves to continue digging into NSA programs to learn about their reach and value.

“The truth prevails,” Priest said. “That might turn out to be the most important thing that we do: that is, do our job.”