Media coalition urges better protection of First Amendment rights in NSA, FISA court matters

The Reporters Committee for Freedom of the Press, joined by 36 other news media organizations, filed public comments calling on the president’s Review Group on Intelligence and Communications Technologies to more carefully balance the secrecy sometimes required in national security investigations with the public’s right to know what its government is doing.

In response to a call from the Review Group to comment on how government can utilize technology to protect national security while protecting privacy and civil liberties, the Reporters Committee-led media coalition made several suggestions, including increased transparency in the Foreign Intelligence Surveillance Court (the FISA court) and the creation of a media advocate to oversee public interests in the secret court.

“We urge this Review Group to embrace a more transparent FISA process and help ensure that the FISA court does not interfere with protected newsgathering to the point that innocent and necessary communications with reporters are stifled,” the Reporters Committee letter stated. “The government needs to more vigorously protect the free flow of information and openness in the judicial process to ensure that its efforts to combat terrorism do not end up swallowing the nation’s commitment to First Amendment values.”

Among the Reporters Committee’s recommendations explained in the Review Group letter are:

Government officials must ensure that legal speech is not deterred. “The stated purpose of leak investigations is to punish those people who have taken on confidentiality obligations to the government and then broken the law by divulging classified information. The effect, however, is much broader. Such investigations, which have increased significantly during the Obama administration, have the effect of deterring perfectly legal speech that is necessary for the public to understand the functions of government.”

The coalition suggests that agencies be more careful not to over-classify information, while simultaneously simplifying the declassification process.

Journalists’ communications, sources, and work product must be protected. “Currently, there is no protection for newsgathering in FISA. Nor is there a sufficient understanding in the public domain of all the ways in which FISA procedures can entangle the work of reporters and their relationships with sources.”

The media coalition recommends a better public explanation of how reporters’ records are being used, as well as a higher standard for government to prove that the material it seeks is directly related to foreign terrorism investigations.

FISA court decisions with precedential value should be released regularly. “A major step toward fostering public understanding and trust in these surveillance programs would be to incorporate a presumption of disclosure into FISC rules that would require, at the very least, the release of FISA court decisions that have precedential value.”

Recognizing that some warrant decisions in the FISA court are sealed to protect ongoing investigations, the media group argues that those decisions that interpret the law or set legal precedent should be made public.

A permanent legal advocate for the press and the public should be appointed in the FISA court. “Of particular concern to this coalition is the fact that media organizations would not be aware if they are the subject of a request to the FISA court and therefore would be unable to defend their interests before the court.”

This independent attorney advocate would have the appropriate security clearance to defend public and media interests before the court, serving as a counterpoint to government.

Support for additional discussion programs is needed. “The conclusions reached at the 2003 Aspen Institute conference about ‘best practices’ for American journalists were a good starting point and those discussions continued for some time until they tapered off. They should be revived and the Review Group should encourage the Obama administration to participate.”

The media coalition believes that a structured, ongoing dialogue can inform reporting on national security issues, leading to better understanding by the public.

Better communication between national security agencies and the news media is needed. “In cases that trigger legitimate national security concerns, officials need to be clearer and more specific in explaining the nature of the anticipated harm of publishing a given piece of information. Simply citing national security does not provide a media outlet with sufficient information to weigh the potential harms of publishing against the public’s interest in knowing the facts.”

In addition to making sure agency press officers understand and respect deadline requests and that someone be available at all times, agency personnel must also be clear that the risk posed by disclosure involves significant harm to national security, not just controversy or embarrassment.

“This summer, when the Reporters Committee similarly organized a media coalition for discussions with the Justice Department over guidelines for subpoenaing journalists, we were assured that DOJ was committed to not prosecuting journalists simply for newsgathering and to reforming how it attempts to use of journalists’ records during investigations. We appreciate the opportunity to open a second dialogue, this time with national security officials, on similar subjects,” said Reporters Committee Executive Director Bruce D. Brown.

Joining the Reporters Committee on the Review Group letter were: ABC, Inc.; Advance Publications, Inc.; Allbritton Communications Company; ALM Media, LLC; American Society of News Editors; The Associated Press; Atlantic Media, Inc.; Bloomberg L.P.; Cable News Network, Inc.; California Newspaper Publishers Association; Courthouse News Service; Dow Jones & Company, Inc.; The E.W. Scripps Company; First Amendment Coalition; Fox News Network LLC; Gannett Co., Inc.; Hearst Corporation; Investigative Reporters and Editors; Investigative Reporting Workshop at American University; Journal Communications, Inc.; The McClatchy Company; Media Consortium; National Press Photographers Association; National Public Radio, Inc.; The New York Times Company; The New Yorker; Newspaper Association of America; North Jersey Media Group Inc.; POLITICO LLC; Radio Television Digital News Association; Reporters Without Borders; Reuters America LLC; The Seattle Times Company; Society of Professional Journalists; Tribune Company; and The Washington Post.

About the Reporters Committee

Founded in 1970, the Reporters Committee for Freedom of the Press offers free legal support to thousands of working journalists and media lawyers each year. It is a leader in the fight against persistent efforts by government officials to impede the release of public information, whether by withholding documents or threatening reporters with jail. In addition to its 24/7 Legal Defense Hotline, the Reporters Committee conducts cutting-edge legal research, publishes handbooks and guides on media law issues, files frequent friend-of-the-court legal briefs and offers challenging fellowships and internships for young lawyers and journalists. For more information, go to www.rcfp.org, or follow us on Twitter @rcfp.

Related Reporters Committee resources:

· Release: FISA Court must be accountable, even broadly, to the public, Reporters Committee brief argues

· News: FISA court orders government to review for declassification opinions on NSA spying

· Amending the Department of Justice subpoena guidelines