The dangerous game of reporting on government spying operations

Markus Beckedahl, the editor-in-chief and founder of Netzpolitik,org, working at a computer at the website's office in Berlin, Germany, after an interview with The Associated Press on Wednesday, August 5, 2015. (Photo: AP)

Most people in the United States have probably never heard of the popular German news site until this month. But it has been in the news for a reason it wish it wasn’t: the German government is threatening two of its reporters with treason. Their supposed offense? Reporting on leaked information about Germany’s mass surveillance capabilities.

These leaks did not come from Edward Snowden, but the content was eerily similar: they exposed the German government’s secret plans to step up internet surveillance.

The public reaction was swift. The investigation made world headlines and thousands of people marched in the streets to protest the clear violation of press freedom. Dozens of journalists and free speech advocates signed a letter challenging the government’s aggressive tactics. By Tuesday, the German Justice Minister had fired the country’s top prosecutor who brought the case. (On Monday, after some question about whether the inquiry would continue, Germany formally dropped the investigation despite the fact that some powerful members of the government wanted it to proceed).

While the story may be headed towards a just ending, it is one piece in a much larger story that has western government increasingly cracking down on journalism that dares report on mass electronic spying.

Journalism legend Duncan Campbell penned an incredible piece for the Intercept last week about his 40-year quest to report on the British government’s mass surveillance capabilities, despite Britain’s notorious penchant for harsh clampdowns when investigative reporting casts them in a bad light. He wrote

“In my 40 years of reporting on mass surveillance, I have been raided three times; jailed once; had television programs I made or assisted making banned from airing under government pressure five times; seen tapes seized; faced being shoved out of a helicopter; had my phone tapped for at least a decade; and — with this arrest — been lined up to face up to 30 years imprisonment for alleged violations of secrecy laws.”

Campbell ended his retrospective on a high note, saying that “thanks to Edward Snowden and those who courageously came before, the need for public accountability and review has become unassailable.” However, the UK, which arguably has the most authoritarian approach to the press in the western world, has still refused to give an inch on the Snowden revelations—even as the GCHQ, Britain’s NSA equivalent, has been found to have broken the law over and over again by British courts.

Just two weeks prior to Campbell’s epoch, Intercept journalist Ryan Gallagher confirmed that the UK government continues to criminally investigate the journalists at the Guardian who were involved in the Snowden story more than two years later. (This is on top of their deplorable detainment of Glenn Greenwald’s partner David Miranda under their “terrorism” law merely for traveling through the UK with encrypted Snowden documents on his person.)

In Australia, their government in the past year has passed a series of disturbing measures, not only dramatically expanding their surveillance capabilities, but criminalizing reporting on them as well. Their data retention law, which forces service providers to hold onto metadata, was passed, in part, “for the express purpose of determining the identity of a journalist’s sources.” Another national security law, passed at the end of 2014, expressly outlaws journalism on “special intelligence operations,” which, defined broadly could mean just about anything related to national security the government didn’t like.

Australia’s neighbor New Zealand raided the house and seized the computers of famed investigative reporter Nicky Hager (along with his children’s computers). Hager had recently written a popular book critical of Prime Minister John Key that was based on a leak, and was busy working on another major story based on the Snowden documents. (Disclosure: The organization I work for, Freedom of the Press Foundation, raised money for Hager’s legal defense.)

These crackdowns are not limited to the US’s main “Five-Eyes” spying partners, however. Japan is currently fuming over documents published by WikiLeaks showing the US has been spying on them, a fact they would not know if it wasn’t for another leak. Yet they too passed a draconian secrecy law in the post-Snowden era. In December 2013, after strenuous objections from the minority party and the Japanese public, the ruling Liberal Democratic party pushed through a law clamping down on the government’s supposed secrets, which could potentially criminalize their publication if they were obtained “illegally.” The US government had been pushing for the law and hailed its passage.

As NPR reported at the time, “The penalties for violators are harsh: 10 years in prison for civil servants who leak classified information; five years for citizens convicted of abetting leaks. The law covers defense, diplomacy, counterterrorism and counterintelligence.”

“Abetting leaks.” Don’t forget that’s what Glenn Greenwald was once accused of in the press, and what Fox News reporter James Rosen was accused of in court documents. It’s also known to many reporters as simply doing their jobs. (If only the prosecutor in that case was fired like his or her counterpart in Germany.)

If there was ever a doubt, journalism that surfaces the propensity of governments for mass surveillance remains a dangerous game.

Trevor Timm is the executive director of Freedom of the Press Foundation, a non-profit organization that supports and defends journalism dedicated to transparency and accountability. He is also a twice-weekly columnist for the Guardian, where he writes about privacy, national security, and the media.