Mass surveillance threatens reporting that relies on confidential sources

Government mass surveillance can chill or compromise newsgathering that relies on confidential reporter-source communications, the Reporters Committee for Freedom of the Press told the United States Court of Appeals for the Ninth Circuit earlier this month when urging it to reverse a California district court’s order dismissing the case in Jewel v. National Security Agency.

Filed in 2008 by the Electronic Frontier Foundation on behalf of AT&T customers, the case challenges the NSA’s collection of those AT&T customers’ communications and records on constitutional and statutory grounds. In addition to threatening the privacy of millions of Americans, NSA mass surveillance programs have worrisome implications for journalists.

In a friend-of-the-court brief, filed Sept. 13, Reporters Committee attorneys argue that mass surveillance threatens the trust journalists build with their sources, which then interferes with their ability to “investigate and report on important issues of public interest.”

For example, after the Justice Department’s seizure of records from 30 Associated Press telephone lines — used by more than 100 reporters — came to light, AP President and CEO Gary Pruitt said, “Some of our longtime trusted sources have become nervous and anxious about talking to us, even on stories that aren’t about national security,” and that the chilling effect was not limited to the AP.

In response to public outcry over the seizure of AP’s records, the Justice Department revised its internal guidelines that govern the collection of records or information from members of the news media to strengthen protections for journalists. Notably, the revised guidelines protect journalists engaged in all “newsgathering activities” rather than the previously ambiguous “ordinary” newsgathering definition included in the guidelines.

As the brief notes, “The guidelines reflect the shared understanding between prosecutors and the press that newsgathering is both constitutionally protected and would be compromised without effective checks on unnecessary investigative scrutiny of the press.”

However, as Reporters Committee attorneys note in the brief, “mass surveillance negates the safeguards the government itself has adopted to protect reporter-source confidentiality and the independence of the press.” Given how often journalists rely on digital communications — whether they are emails, phone calls or text messages — the indiscriminate collection of either the content or metadata of these communications through mass surveillance programs threatens the newsgathering process and reporter-source relationships.

Without confidentiality between journalists and sources, groundbreaking reporting on stories like Watergate, the Panama Papers or the use of “enhanced” interrogation techniques on terrorism suspects by the U.S. would not have been possible. The brief also notes a 2006 Frontline interview with Norm Pearlstein, in which the executive editor of The Los Angeles Times said information from anonymous sources are part of the “fabric of American journalism.”

It “is crucial for this Court to vindicate the rights of the press and the public in this case, particularly in light of the Justice Department’s internal policies limiting when and how the department may investigate the press,” the brief concludes.

The increased prosecution of cases involving “leaks” to the media also underscores the heightened importance of protecting confidential sources and newsgathering. As the brief explains in detail, although leak investigations are pursued using criminal investigative tools, information about reporter-source communications collected through mass surveillance programs could possibly be used in criminal cases.

As noted in the Reporters Committee’s “leak” investigations chart, the Obama administration prosecuted more media leakers than any previous administration to date, at least 10 over eight years, while the current administration has brought eight leak cases and secured the two longest prison sentences in such cases to date.

Read the media coalition’s full brief.

The Reporters Committee regularly files friend-of-the-court briefs and its attorneys represent journalists and news organizations pro bono in court cases that involve First Amendment freedoms, the newsgathering rights of journalists and access to public information. Stay up-to-date on our work by signing up for our monthly newsletter and following us on Twitter or Instagram.