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After Snowden, Columbia J-School Panel Sees Renewed Need for Legal Framework Protecting Journalists

BY Miranda Neubauer | Friday, January 31 2014

The editors of the Guardian's U.S. edition and the New York Times, a First Amendment lawyer and a member of the Obama-appointed surveillance review panel called for a renewed legal framework to protect the privacy and security interests of journalists in the wake of the unprecedented surveillance revelations from Edward Snowden at a panel at Columbia University Thursday night. Noting varying degrees of government pressure on both sides of the Atlantic, Guardian U.S. editor Janine Gibson and New York Times executive editor Jill Abramson stressed that respecting the right of news organizations to report on sensitive materials was in the government's interest as well, since otherwise the material would simply find its way out in a completely haphazard way without regard for any journalistic responsibility, which was also the outcome Edward Snowden hoped to avoid.

Last night's "Journalism After Snowden" event kicked off a year-long program of the Columbia Journalism School's Tow Center for Digital Journalism to examine the impact of the Snowden revelations on the work of journalists that will include events, research and writing as well as an in-depth survey of how journalists use digital security tools and the creation of online resources on how journalists can protect their online data, the school's Dean Steve Coll noted.

Gibson recalled the story beginning with a call from Glenn Greenwald that he had "the biggest intelligence leak in a generation, or maybe, ever." There are over 56,000 documents in just one of the multiple caches alone, she noted. "I don't think anybody knows [the total size]," she said. "The NSA said for a while they did, and then they said they didn't."

From the beginning, reporting the story meant becoming very familiar very fast with using encryption technology such as disposable chat rooms, Gibson recalled. She also detailed the extensive verification efforts the Guardian undertook, starting with the FISA court order for Verizon data and the challenge that "you can't Google secret FISA court orders."

Abiding by the reporting, verification and security protocols the Guardian had established was also a condition for the New York Times joining on the reporting, Abramson explained, a cooperation that became more urgent when the Guardian had to destroy files in the United Kingdom under the pressure of government officials in the U.K.

"The Guardian schooled us exactly how to handle and safekeep them and communicate in a very secure manner, it took up days of Janine and me talking," Abramson said. "That point is somewhat lost [with the idea] that a leak is a bunch of stuff thrown at us, that is never the case."

Gibson said that in comparison, the Wikileaks documents were much less sensitive and so in that instance it made sense for outside experts to be able to search through them somewhat independently. Because of the highly sensitive nature of the Snowden revelations, it was not advisable to have anyone be able to "root around [in the documents] for all sorts of stories" but rather important to "build boundaries about what we want to report."

David Schulz, outside counsel to the Guardian, explained how it was the history of the Espionage Act that was causing legal uncertainty for journalists in possession of unauthorized national security information. Even though no journalist has been prosecuted under that law since 1917, there have been prosecutions of leakers. Legal precedent suggested it would be necessary to convince a judge that the public had compelling interest in the material, but he noted that it is "unresolved if that is even a defense."

Cass Sunstein, the member of President Obama's NSA review panel, noted that its members solicited comments from all over the world to help inform their determinations. He noted that the term security as applied to both national security and being safe from privacy intrusion shared the same Latin root. "[The panel's] view is that these two forms of security can both be safeguarded and it's a big mistake to think that in a free society, one can be pursued at the expense of another," he said. "One thing we're fighting for when protect our national security is the other form of security."

He explained that the panel believed it was important not just to take into account risks to national security, but also risks to journalistic freedom and relations with foreign countries, and to be reviewing policies instituted in response to threats in an ongoing way, with one recommendation being a designated official in the White House focused on privacy and civil liberties.

Abramson and Schulz pointed to the Verizon court order as a "wake-up call" with it sending a "give us everything" message.

"Two years ago the president said we need a consumer bill of rights [with regard to company access to personal data]. We need a privacy bill of rights," Schulz said.

Sunstein emphasized that the panel saw "undue risks" with the government storage of telephone metadata, unlike the storage by private companies already in place for customer service purposes. The review group members are also uneasy with a distinction between the dangers inherent in accessing conversation content data and metadata, he said, noting the security and privacy implications for communications between journalists and sources. In a free society such as the U.S., Schulz said, "there has to be basis for confidential conversation."

"These are not new ideas, but in a time of radically different technological advances, it's important to insist on their enduring value," Sunstein emphasized.

But when moderator Emily Bell, director of the Two Center, asked the whole panel "whether we can all agree that Snowden has done us a favor," each panelist opted not to answer directly. "No comment," Sunstein said, adding that the word "Snowden" doesn't appear in the panel's report. He also pointed out later that he did not believe any member of the panel would call Snowden a "whistle-blower." While the panel calls for the declassification of FISA court opinion and "a lot more transparency," Sunstein also emphasized that "to leak classified information, it's very complicated how to handle that."

Gibson noted that while other leak-driven stories focus on pressure to reveal a source, the way a leaker like Snowden controlled his own story led to the threat of journalists being identified as co-conspirators to espionage, which is "even more chilling...the ordinary way of chilling journalism won't work, that's not going to stop [the release of information], that is journalism after Snowden, naming names, and then proving you're not a co-conspirator."

Both Gibson and Abramson recounted making the case to the government authorities that pressure on news organizations was counterproductive. "Once you remove the news organization with the judgment, the information will find its way out in ways you cannot control," she said. By trying to contain the problem "by restraining us with a legal are only making it worse," she emphasized. Given the more restrictive laws in the U.K., she stressed that somewhat ironically the Guardian could not have reported the story without the U.S. edition under protection of U.S. laws. She also emphasized that she felt Snowden's "primary consideration" was wanting the information dealt with carefully, "not spilled over the Internet."

Abramson said she tried to make clear to government officials that "we're your best friends, we're responsible filters" for trying to determine what should and shouldn't be disclosed. She added that the inability to verify claims that the leaks had endangered national security was troubling, and reminded her of the Pentagon Papers.

Last Sunday, Snowden was asked on German TV about suspicions that he is a traitor to foreign governments. "If I am a traitor who did I betray?," he replied. "I gave all of my information to the American public, to American journalists who are reporting on American issues. If they see that as treason I think people really need to consider who do they think they’re working for."

Washington Post journalist Barton Gellman, who has reported on the Snowden disclosures and attended the Columbia discussion Thursday, told the audience afterwards that while the actual risk of journalists being prosecuted is remote, the effect on national security journalism is significant since "everything you want to write about is classified except press releases and news conferences." But with the potential ability to access the large amounts of collected data "and if the law has been interpreted to mean that to talk to a reporter is espionage...the leak investigation is over before it starts."

The panel participants expressed interest in an international norm to protect Internet freedom, privacy rights and protecting journalists against prosecution.

"The fact that there are surprising coalitions [calling for reform] is encouraging," Sunstein said. "We don't have the simple splits between Republicans and Democrats, and that maybe does give an opportunity, a window for reforms with more stable foundations."