When the World Wide Web fought back against the National Security Agency
The Internet fought back yesterday against the ever-encroaching mass-surveillance state being imposed by the NSA and associated government agencies in the U.S. and its international partners. Members of Congress were bombarded with emails and phone calls as part of a coordinated day of action, billed as “The Day We Fight Back,” involving more than 6,000 websites and countless more individuals.
According to Inagist.com, the day of action resulted in at least 80,741 phone calls, 163,859 emails, 220,182 petition signatures, and more than 700,000 visitors to the website.
The online protest began at midnight on Feb. 11 and continued throughout the day. Participating websites included major online platforms such as Reddit and Tumblr and a number of advocacy groups, including Upworthy, Electronic Frontier Foundation, the ACLU, and Demand Progress.
In addition to protesting the widespread government surveillance made public by NSA whistleblower Edward Snowden, the event was timed to commemorate the tragic death of Aaron Swartz, an Internet pioneer and freedom of information activist who was found dead of an apparent suicide in January 2013 amid an overzealous government prosecution that threatened to send him away for 35 years to a U.S. federal prison.
Swartz was a victim of the U.S. “war on whistleblowers,” an ongoing government campaign to clamp down on the free flow of information which has caused the United States to lose its once-touted status as a global champion for freedom of the press. In Reporters Without Borders’ World Press Freedom Index released today, the U.S. fell 13 places from its position last year, being ranked now just 46th out of 180 surveyed countries worldwide.
As Reporters Without Borders explains on its website,
Countries that pride themselves on being democracies and respecting the rule of law have not set an example [for press freedom], far from it. Freedom of information is too often sacrificed to an overly broad and abusive interpretation of national security needs, marking a disturbing retreat from democratic practices. Investigative journalism often suffers as a result.
This has been the case in the United States (46th), which fell 13 places, one of the most significant declines, amid increased efforts to track down whistleblowers and the sources of leaks. The trial and conviction of Private Bradley Manning and the pursuit of NSA analyst Edward Snowden were warnings to all those thinking of assisting in the disclosure of sensitive information that would clearly be in the public interest.
While obsessively persecuting conscientious leakers of state secrets, the U.S. government has simultaneously waged a war against individual privacy that violates a host of international norms, including as Privacy International has pointed out: Article 12 of the 1948 Universal Declaration of Human Rights, which specifically protects territorial and communications privacy; Article 17 of the International Covenant on Civil and Political Rights 1966; Article 14 of the United Nations Convention on Migrant Workers, and Article 16 of the UN Convention of the Protection of the Child.
Other international conventions that recognize the right to privacy include Article 10 of the African Charter on the Rights and Welfare of the Child, Article 11 of the American Convention on Human Rights, Article 4 of the African Union Principles on Freedom of Expression, Article 5 of the American Declaration of the Rights and Duties of Man, Article 21 of the Arab Charter on Human Rights, and Article 8 of the European Convention for the Protection of Human Rights and Fundamental Freedoms.
In an attempt to counter this assault on international norms and U.S. constitutional rights, websites participating in The Day We Fight Back embedded a large black banner that allowed visitors to input their email address and location and send a letter to their representatives in Congress asking them to oppose the FISA Improvements Act, an Orwellian piece of legislation that would retroactively legalize the government’s unlawful mass spying program.
The ACLU called the proposed act “a dream come true for the NSA” that would “codify the NSA’s unconstitutional call-records program and allow bulk collection of location data from mobile phone users.”
Following up on the U.S.-oriented Day We Fight Back, today several groups launched a European-based campaign to protest, in particular, the activities of the NSA’s junior partner in mass surveillance, Britain’s GCHQ. Privacy International, Article 19, Big Brother Watch, English PEN, Liberty, and Open Rights Group initiated the Don’t Spy On Us campaign. In an announcement at the Privacy International blog, Gus Hosein notes,
In almost every week since last summer, a new Snowden document has been released which details the growing surveillance powers and practices of intelligence agencies, each one astonishing in its own right. The documents have exposed the illegal activities and intrusive capabilities of the UK’s intelligence agency, GCHQ, which has secretly sought to exploit and control every aspect of our global communications systems.
For far too long, mass and intrusive government surveillance programs have operated in the shadows, outside of the rule of law, and without democratic accountability. Now our governments are even defending this state of affairs. This should not be, and certainly cannot continue.
We must fight back.
The New York-based Human Rights Watch recently warned that the NSA is “setting trends” and that there will soon there will be “no safe haven” from the worldwide surveillance practices being pioneered by the United States government.
“As the world’s information moves into cyberspace, surveillance capabilities have grown commensurately,” says HRW in its 2014 World Report. “The U.S. now leads in ability for global data capture, but other nations and actors are likely to catch up, and some already insist that more data be kept within their reach.”
Hopefully the international grassroots movement to counter this trend is able to keep up.
For more information, please see:
American Civil Liberties Union
Bill of Rights Defense Committee
Mounting alarm over media crackdown in the United States
As the U.S. government’s crackdown on the press intensifies, international organizations and media freedom advocates are expressing growing alarm over what is seen as a systematic attempt to muzzle journalists and deny the public the right to unimpeded access to information.
Following last week’s news that the U.S. Justice Department had seized records for 20 telephone lines of journalists at the Associated Press, the largest and oldest news organization in the world, the reaction was intense. The AP had not been informed in advance of the prosecutors’ actions, nor did the Justice Department initiate a notice and negotiation process, leading the AP to send an angry letter to Attorney General Holder about the spying, stating in part,
There can be no possible justification for such an overbroad collection of the telephone communications of The Associated Press and its reporters. These records potentially reveal communications with confidential sources across all of the newsgathering activities undertaken by the AP during a two-month period, provide a road map to AP’s newsgathering operations, and disclose information about AP’s activities and operations that the government has no conceivable right to know.
That the Department undertook this unprecedented step without providing any notice to the AP, and without taking any steps to narrow the scope of its subpoenas to matters actually relevant to an ongoing investigation, is particularly troubling.
The U.S.-based NGO Freedom House issued a strongly worded statement expressing “deep concern” over the revelation of spying and called on Congress to revive a federal “shield law” that would provide journalists with a measure of protection from prosecutors’ demands for information.
“For some time we have been concerned about the administration’s over-zealous pursuit of alleged leakers and the efforts to force the testimony of journalists,” said David J. Kramer, Freedom House president. “Preserving secrecy in national security deliberations is important, but this scatter-shot intrusion into the news-gathering affairs of the Associated Press is truly disturbing. What we’re now seeing is an entirely new level of government involvement in the affairs of a free media.”
The OSCE Representative on Freedom of the Media, Dunja Mijatović, said she was distressed over the revelations of government surveillance of the press, and called for an investigation.
“There is simply no justification for such a broad violation of these reporters’ constitutional rights,” Mijatović said. As an official with the intergovernmental Organization for Security and Cooperation in Europe, which counts the United States as one of its 57 member states, Mijatovic also issued a letter directly to U.S. Secretary of State John Kerry.
“There may be occasions when, in the interest of security, a limited intrusion on reporters’ activities, judicially authorized, may be justified, but the sheer scope and breadth of this action is simply a deprivation of basic constitutional rights,” Mijatović wrote in the letter. “The action also calls into question the ability of sources to talk to reporters without fear of government eavesdropping.”
There is no indication that the State Department has responded in any way to the direct criticism from the OSCE.
Following this controversy, a new revelation emerged over the weekend that a federal agent was granted a warrant in 2010 to search the email account of Fox News correspondent James Rosen on suspicion that the reporter had violated the 1917 Espionage Act by soliciting classified information from a State Department official.
This previously undisclosed development, which the FAS Project on Government Secrecy called “a startling expansion of the Obama Administration’s war on leaks,” was first reported in the Washington Post on May 19.
The search warrant was issued in the course of an investigation into the suspected leak of classified information allegedly committed by Stephen Jin-Woo Kim, a former State Department contractor, who was indicted in August 2010.
“I believe there is probable cause to conclude that the contents of the wire and electronic communications pertaining to the SUBJECT ACCOUNT are evidence, fruits and instrumentalities of criminal violations of 18 U.S.C. 793 (Unauthorized Disclosure of National Defense Information), and that there is probable cause to believe that the Reporter has committed or is committing a violation of section 793(d), as an aider and abettor and/or co-conspirator, to which the materials relate,” wrote FBI agent Reginald B. Reyes in a May 28, 2010 application for a search warrant.
As Steven Aftergood of the FAS Project on Government Secrecy explained, “the Reyes affidavit all but eliminates the traditional distinction in classified leak investigations between sources, who are bound by a non-disclosure agreement, and reporters, who are protected by the First Amendment as long as they do not commit a crime.”
The affidavit also highlights the government’s ability to monitor activity within classified networks with a fine mesh, and to correlate document downloads with external communications.
“So far, the FBI’s investigation has revealed in excess of 95 individuals, in addition to Mr. Kim, who accessed the Intelligence Report [containing the information reported by Mr. Rosen] on the date of the June 2009 article and prior to its publication. To date, however, the FBI’s investigation has not revealed any other individual, other than Mr. Kim, who both accessed the Intelligence Report and who also had contact with the Reporter on the date of publication of the June 2009 article,” the affidavit noted.
The Freedom of the Press Foundation, which has advocated on behalf of new media organizations such as WikiLeaks, drew a parallel between the ongoing campaign against Julian Assange’s right to gather and publish classified information in the public interest, and the new revelations of assaults against the Associated Press and Fox News for doing the same. “Under the law, the AP, Fox News, and WikiLeaks are no different (a fact that even the government argues),” Trevor Timm of the Freedom of the Press Foundation pointed out today. “If one falls, the others will not be far behind.”
The press freedom advocate lamented that many journalists and mainstream media organizations remained silent when WikiLeaks first came under attack by the Justice Department in early 2011.
“That disappointing silence left open the possibility that the Justice Department could use those same tactics against others in the future,” wrote Timm. “And unfortunately now it’s clear: virtually every move made by the Justice Department against WikiLeaks has now also been deployed on mainstream US journalists.”
Just as the intimidation of WikiLeaks has done, the case raises concerns about stifling effect of these investigations on a critical element of press freedom: the exchange of information between reporters and their sources.
“Search warrants like these have a severe chilling effect on the free flow of important information to the public,” said First Amendment lawyer Charles Tobin, who has represented the Associated Press, but not in the current case. “That’s a very dangerous road to go down.”
By chilling the flow of information as the Obama administration appears to be systematically doing in its attacks on media organizations and government leakers, the U.S. government may be violating not only the First Amendment to the Constitution, but also its international obligations.
As Article 19 of the Universal Declaration of Human Rights states,
Everyone has the right to freedom of opinion and expression; this right includes freedom to hold opinions without interference and to seek, receive and impart information and ideas through any media and regardless of frontiers.
This obligation is reiterated in the International Covenant on Civil and Political Rights, which the U.S. ratified in 1992. In its general comment on the importance of this provision of the ICCPR, the Human Rights Committee of the UN noted in 2011,
A free, uncensored and unhindered press or other media is essential in any society for the ensuring of freedom of opinion and expression and the enjoyment of other Covenant rights. It constitutes one of the cornerstones of a democratic society. The Covenant embraces a right to receive information on the part of the media as a basis on which they can carry out their function. The free communication of information and ideas about public and political issues between citizens, candidates and elected representatives is essential. This implies a free press and other media able to comment on public issues without censorship or restraint and to inform public opinion. Pursuant to article 19, the public also has the right to receive information as a corollary to the specific function of any journalist to impart information.
Just last week, the U.S. government reaffirmed its commitment to these principles at the OSCE media freedom seminar in Warsaw.
“Underlying our OSCE commitments on media freedom are Article 19 of the UN Universal Declaration on Human Rights and our obligations under Article 19 of the International Covenant on Civil and Political Rights as enshrined in the Helsinki Final Act to respect the fundamental freedom of expression,” said the State Department’s Sabeena Rajpal, representing the U.S. delegation at the seminar. “This fundamental freedom is the birthright of every human being; it is inherent in the individual and not for governments to dole out or deny as they see fit.”
“Our OSCE commitments require participating States to ensure that their laws will conform to their international legal obligations,” she added.
If the United States is serious about these commitments, it would do well to halt its attacks on press freedom. If the attacks continue, the U.S. finds itself in increasing danger of becoming a full-blown “totalitarian security surveillance state,” in the words of former New York Times reporter Chris Hedges.