The journalism world has been rightly outraged by the Justice Department dragging the Associated Press (and now a Fox News reporter) into one of its sprawling leak investigations. As we wrote last week, by obtaining the call records of twenty AP phone lines, “the Justice Department has struck a terrible blow against the freedom of the press and the ability of reporters to investigate and report the news.”
But there are several other important lessons that this scandal can teach us besides how important free and uninhibited newsgathering is to the public’s right to know.
1. Weak Privacy Laws That Doomed AP Affect Everyone
The AP detailed in its letter to the Justice Department how its privacy was grossly invaded even though the government accessed only the call records of its reporters and not the content of their conversations. We completely agree. Unfortunately, this isn’t just a problem in the AP investigation. Law enforcement agencies routinely demand and receive this information about ordinary Americans over long periods of time without any court involvement whatsoever, much less a full warrant.
For example, according to information released by the phone companies to Rep. Ed Markey, Sprint alone received a staggering 500,000 subpoenas for call records data last year.
The DOJ’s decision to dive into these call records shows the growing need to update our privacy laws to eliminate the outmoded Third Party Doctrine—which holds that anything you give to a service provider, or that a service provider collects as part of providing you a service—can retain no reasonable expectation of privacy. In an era where email is stored by our providers, cellphone companies keep records that track our location and cloud services hold our documents, it’s long past time to bring our interpretation of the Fourth Amendment and statutory electronic privacy laws in compliance with the 21st Century.
In response to the AP scandal, a bipartisan coalition in Congress just introduced a bill to partially fix this problem called The Telephone Records Protection Act. The bill would require the Justice Department to get a judge’s approval before seeking these records. At EFF, we think the government should have to go even further than a court order: a judicial warrant showing the kind of probable cause required by the Fourth Amendment should be the standard. But this bill is certainly an improvement over administrative subpoenas, which don’t need a sign-off from a judge at all and allow the Executive branch to seek information without any external check.
2. Phone Companies May Give Up Your Information Without Telling You
As the New York Times reported, the AP is still examining if and when any telephone companies tried to push back on the overbroad requests for its call records. “But at least two of the journalists’ personal cellphone records were provided to the government by Verizon Wireless without any attempt to obtain permission to tell them so the reporters could ask a court to quash the subpoena,” the Times said. And it also seems clear that the AP itself wasn’t given notice before their phone company turned over the records.
In EFF’s 2013 “Who Has Your Back” report, which tracks several ways in which communications companies can help protect user privacy, we give a star for promising to notify users about government demands for data whenever whenever the company is not legally prevented from doing so. Notably, Verizon does not have such a notification policy and did not receive a star. In fact, Verizon was the only company to receive zero stars.
This isn’t a small problem or just a problem for journalists. Verizon received 260,000 similar subpoenas for call records last year. The government requests this information with regularity, and given the phone companies control the data, communications company policies are all that stand between you and governmental overreach.
Users should demand that their communications companies notify them when the government comes seeking information, unless they are legally barred by a court order.
3. Government often Overstates National Security Claims, Overclassifies Information
We’ve written many times about the many ways “national security” has been invoked—and exaggerated—in order to cover up government embarrassment or wrongdoing, or to assert powers that would normally not be granted under the Constitution. The government routinely overclassifies information that should never be secret, according to reports commissioned by the White House itself.
The most glaring example for EFF is our lawsuit over the NSA warrantless wiretapping program, where the government won’t admit or deny that the program even exists, citing the danger to national security, despite thousands of pages of public evidence. The government has argued the same thing in cases about torture and the CIA drone program where, many times, the same information that they claim is secret is on the front pages of the nation’s newspapers.
In the AP’s case, while Attorney General Holder says this leak put “lives at risk,” John Brennan said the opposite around the time of the story (“Brennan said the plot was never a threat to the U.S. public or air safety,” reported Reuters). The AP also held its story for six days until the CIA told them it was safe to publish and the White House had a news conference planned the day after the story to announce the successful counterterrorism operation.
As the late Supreme Court Justice Huge Black once said, “The word ‘security’ is a broad, vague generality whose contours should not be invoked to abrogate the fundamental law embodied in the First Amendment.”
4. There’s Not Much Recourse For Prosecutorial Misconduct
In this case, just like the case of Aaron Swartz, there has been widespread criticism that the Justice Department has abused its authority and aggressively pursued parties in an unprofessional manner. As we detailed last week, it seems the Justice Department didn’t follow its own guidelines when issuing subpoenas about[?] the reporters, or at least went to the very edge of its own guidelines.
Just like in the Swartz case, the specific prosecutor has a history of over-aggressive prosecutions (even being accused of overzealous prosecution by Eric Holder himself when he was in private practice). Yet when Congress asked Holder at a hearing about the allegations, just like in the Swartz case, he did not admit to any wrongdoing, and was able to deflect questions about his department’s handling of the case. Unfortunately, there is not much recourse for meaningful remedy for the public in these situations, and this case is just the latest example.
5. Journalists Need to be Pro-Active in Protecting Their Digital Security
In an age where warrantless surveillance is skyrocketing and governments potentially have access to an astonishing amount of information, journalists must learn to proactively protect both themselves and their sources.
The Committee to Protect Journalists Journalist Security Guide is an excellent place to start. It addresses concerns faced by journalists working inside the United States and internationally.
Wired published an op-ed last week about the care one needs to take from the source’s end if one wishes to send information to the press undetected. Much of the advice is applicable to reporters talking to sources as well. Additionally, the New Yorker has just released a promising—but un-tested—anonymous leak submission system, coded by Aaron Swartz before he tragically died in January. In certain circumstances physical mail remains the safest option.
Overall, the final lesson is that journalists, and sources, need to take security seriously. Trusting that the government won’t come after you because you’re engaged in journalism, serving the public interest, or helping reveal wrongdoing is plainly not sufficient.
The grand jury is perhaps the most mysterious institution in the American criminal justice system. While most people are generally familiar with the function of the police officer, the prosecutor, the defense lawyer, the judge, and the trial jury, few have any idea about what the grand jury is supposed to do and its day-to-day operation. That ignorance largely explains how some over-reaching prosecutors have been able to pervert the grand jury, whose original purpose was to check prosecutorial power, into an inquisitorial bulldozer that enhances the power of government and now runs roughshod over the constitutional rights of citizens.
Like its more famous relative, the trial jury, the grand jury consists of laypeople who are summoned to the courthouse to fulfill a civic duty. However, the work of the grand jury takes place well before any trial. The primary function of the grand jury is to inquire into the commission of crimes within its jurisdiction and then determine whether an indictment should issue against any particular person. But, in sharp contrast to the trial setting, the jurors hear only one side of the story and there is no judge overseeing the process. With no judge or opposing counsel in the room, grand jurors naturally defer to the prosecutor since he is the most knowledgeable official on the scene. Indeed, the single most important fact to appreciate about the grand jury system is that it is the prosecutor who calls the shots and dominates the entire process. The grand jurors have become little more than window dressing.
At present, Congress seems to be interested only in proposals that will further expand the powers of the grand jury. Recent “anti-terrorism” proposals, for example, have sought to remove critical limitations on the dissemination of grand jury material. Because the grand jury can easily function as a stalking horse for prosecutors to bypass the constitutional rights of individuals and organizations, it is imperative that its powers be scaled back, not unleashed.
Read the Full Policy Analysis [PDF]
BY CONGRESSMAN RON PAUL, R-TEXAS - This week, as Americans were horrified by the attacks in Boston, both houses of Congress considered legislation undermining our liberty in the name of “safety.” Gun control continued to be the focus of the Senate, where an amendment expanding federal “background checks” to gun show sales and other private transfers dominated the debate. While the background check amendment failed to pass, proponents of gun control have made it clear they will continue their efforts to enact new restrictions on gun ownership into law.
While it did not receive nearly as much attention as the debate on gun control, the House of Representatives passed legislation with significant implications for individual liberty: the Cyber Intelligence Sharing and Protection Act (CISPA). CISPA proponents claim that the legislation is necessary to protect Americans from foreign “cyber terrorists,” but the real effect of this bill will be to further erode Americans’ online privacy.
Under CISPA, Internet corporations are authorized to hand over the private information of American citizens to federal agents, as long as they can justify the violation of your privacy in the name of protecting “cyber security”. Among the items that may be shared are your e-mails, browsing history, and online transactions.
Like the PATRIOT Act, CISPA violates the fourth amendment by allowing federal agencies to obtain private information without first seeking a warrant from a federal judge. The law also allows federal agencies to pass your information along to other federal bureaucrats — again without obtaining a warrant. And the bill provides private companies with immunity from lawsuits regardless of the damage done to anyone whose personal information is shared with the government.
CISPA represents a troubling form of corporatism, where large companies cede their responsibility to protect their property to the federal government, at the expense of their customers’ privacy and liberty. In this respect, CISPA can be thought of as an electronic version of the Transportation Security Administration, which has usurped the authority over airline security from private airlines. However, CISPA will prove to be far more invasive than even the most robust TSA screening.
CISPA and the gun control bill are only the most recent examples of politicians manipulating fear to con the people into giving up their liberties. Of course, the people are told the legislation is for “limited purposes,” but authority granted to government is rarely, if ever, used solely for the purpose for which it is granted. For example, the American people were promised that the extraordinary powers granted the government by the PATRIOT Act would only be used against terrorism. Yet soon after the bill became law, reports surfaced that it was being used for non-terrorism purposes. In fact, according to data compiled by the American Civil Liberties Union, 76 percent of the uses of the controversial “sneak-and-peak” warrants where related to the war on drugs!
Sadly, I expect this week’s tragic attacks in Boston to be used to justify new restrictions on liberty. Within 48 hours of the attack in Boston, at least one Congressman was calling for increased use of surveillance cameras to expand the government’s ability to monitor our actions, while another Senator called for a federal law mandating background checks before Americans can buy “explosive powder.”
I would not be surprised if the Transportation Security Administration uses this tragedy to claim new authority to “screen” Americans before they can attend sporting or other public events. The Boston attack may also be used as another justification for creating a National ID Card tied to a federal database with “biometric” information. The only thing that will stop them is if the American people rediscover the wisdom of Benjamin Franklin that you cannot achieve security by allowing government to take their liberties.