Life after Snowden: Journalists’ new moral responsibility

Photo: AP Editor’s note: This is a chapter in Journalism After Snowden: The Future of Free Press in the Surveillance State, a forthcoming book from Columbia University Press. The book is part of the Journalism After Snowden initiative, a yearlong series of events and projects from the Tow Center for Digital Journalism in collaboration with CJR. The initiative is funded by The Tow Foundation and the John S. and James L. Knight Foundation.

Journalism after Snowden? Two very big questions linger on—one about whether the very technologies Edward Snowden revealed are compatible with independent, inquiring reporting; and one crucial question about journalism itself, which could be boiled down to: “What is it supposed to be, or do?”

The technologies first. Any journalist with even a cursory understanding of the Snowden stories published by The Guardian and The Washington Post would have come to an understanding that states—even liberal democracies—have the ability to intercept, store and analyse virtually all forms of electronic communication. Faceless people in shadowy agencies (not to mention the police) can, if they want, read your text messages and emails. They can see who or what you’ve been searching for. They can divine what you’re thinking. They can access all your contacts. And they can follow you.

James Graham’s play, Privacy, at London’s Donmar Warehouse in 2014, dramatized some of these capabilities by exploiting some information the theatre-going audience had volunteered in the act of applying for tickets online, or by having their phones and wifi connections switched on during the performance.

At one point in the first act members of the audience with iPhones were asked to go through a number of steps—flipping through Settings> Privacy > Location Services > System Services> Frequent Locations. Within a few seconds there was a collective gasp as half the stalls and circle occupants discovered the extent to which their phones had been tracking and storing their every moment. There was the evidence in front of their eyes: the maps showing the addresses they had visited over previous weeks or months, together with precise timings. The log of their lives.

These were audiences of reasonably sophisticated theatre-goers with a self-declared interest in the subject of the play—privacy. Most, I guess, vaguely suspected that mobile phones were capable of betraying information about their calls and even movements. But there was something stark and shocking about being confronted—in public—with the incontrovertible and precise evidence of their movements.

Over the six-week run many journalists went to see the play. How many, I wonder, altered their behavior as a result? The theatre critic may have felt she had nothing to hide and changed nothing about her life. But what of reporters whose job involved speaking to, or meeting, sources? Did the penny drop that no source can truly be regarded as confidential if their identity can be quickly obtained by searching through the electronic trail we all leave behind us?

“If you are a law-abiding citizen of this country going about your business and your personal life you have nothing to fear,” said the British Foreign Secretary, William Hague in June 2013 after the early Guardian revelations about the extent of the mass collection and monitoring of information by state agencies. He added that these innocent people had “nothing to fear about the British state or intelligence agencies listening to the contents of your phone calls or anything like that.”

Of course, most journalists and most sources are precisely that—law-abiding citizens doing nothing wrong. Equally, much of the most worthwhile work they do relies on people being prepared to talk confidentially about things of which they have direct knowledge.

Confidentiality means nothing if a third party can easily work out to whom a journalist has been talking—through their phone logs, contacts lists, emails, texts or by working out who else was in a certain location at a certain place.

Nor can journalists take much comfort in Hague’s assurance that the British state is not listening to the “contents” of their phone calls. A police officer or spook doesn’t need to access the “content” of any communication to work out the identity of a whistleblower or source. Welcome to the world of metadata—the accompanying information—not content—often accessible with no form of warrant or judicial oversight, and which tells so much about us.

Pre-Snowden, a knowledgeable minority would certainly have known about metadata. Post-Snowden, there’s no excuse for anyone in journalism (or the law, or medicine, or any profession involving confidentiality) not to know what metadata is. The agencies themselves have been quite open about the value of knowing the who-whom-where-when questions. Stewart Baker, the former general counsel of the NSA, said in a 2013 discussion hosted by The Guardian in New York: “Metadata absolutely tells you everything about somebody’s life. If you have enough metadata you don’t really need content…[It’s] sort of embarrassing how predictable we are as human beings.“

Evidence that law enforcement and security agencies do, indeed, help themselves to such data on journalists’ sources is all around—just as we also learned that British spooks don’t have much time for lawyer-client privilege. The Obama administration’s war on leaks has led to an aggressive crackdown on whistleblowers—notoriously including the Department of Justice secretly obtaining two months’ worth of phone records from more than 20 AP reporters and editors. In the UK, two cases came to light in 2014 in which the police had quietly (and without judicial warrant) used anti-terrorism laws to find out who journalists on the Mail on Sunday and The Sun had been talking to. Neither case involved terrorism, or anything like it. The papers—neither of which had been notably sympathetic over Edward Snowden and his revelations—were, of course, outraged.

The agencies are unlikely to change their habits and, as we’ve seen over the past year or so, it is formidably difficult for congresses or parliaments to scale back laws permitting intrusive behavior by the state once they’ve been passed. So, lesson one of the post-Snowden era is that reporters and editors are going to have to change their behavior.

Betraying a source anywhere is a most unforgivable crime. In comfortable democracies it may lead to sources losing their jobs and their careers being wrecked, and it could even lead to prison. In less comfortable parts of the world it can lead to far worse outcomes—including torture or death.

So journalists have a moral responsibility to absorb what Edward Snowden has been telling us. But how many have? My guess is a tiny minority of news reporters have taken the time and effort to read up on what forms of communication are (relatively) safe and how to send and receive encrypted emails. How many news organizations have secure drop boxes for sources wanting safely to submit documents? How many foreign correspondents have changed their habits in terms of the phones or computer equipment they travel with? Some have. My suspicion is that most haven’t.

Which leads to the second, even more profound, question raised by the Snowden coverage—the essence, independence, and purpose of journalism itself.

I felt this question acutely in Britain, if only because quite a few of my fellow editors either did not think that the Snowden revelations were much of a story or, worse, were positively hostile to The Guardian and its behavior.

The security services discreetly briefed journalists about the harm done by Snowden and can hardly have believed their luck at how enthusiastically and unquestioningly so many took the bait. The Guardian was aggressively accused by fellow journalists of endangering British lives and of something like treason or sedition. No fewer than three papers said that journalists could not be trusted to make judgements about the public interest where national security was concerned.

To judge by the outpourings of some colleagues in the press, Snowden made a wise choice in going to The Guardian. Other journalists would have, at best, ignored the story or had him arrested. A former editor of The Independent, Chris Blackhurst, wrote at the height of the row: “If the security services insist something is contrary to the public interest, and might harm their operations, who am I to disbelieve them?” Edward Lucas, a senior correspondent for The Economist, said that, had Snowden brought the documents to him, he would have marched him straight down to a police station.

It seems to me there is an easy answer to the “who am I?’ question posed by Blackhurst: You are a journalist. You are not part of the state or the government. Your job is disclosure, not secrecy. You stand aside from power in order to scrutinize it. Your job is to be fully sensitive to all the public interests raised by the story—and to publish what you judge to be significant as responsibly as you know how. Only then is informed debate possible. As a journalist, you have as much right to balance those public interests as a politician or a policeman or a judge.

These were strange times to live through, particularly when three papers were among the most trenchant critics of any attempt to regulate the press in the wake of the Leveson Report.

On one hand they demanded self-regulation—because the press was a proud and independent estate. On the other hand they effectively argued that the state must have supremacy over the press in determining what could, and could not, be published about modern-day surveillance. This was a confusing argument for editors, of all people, to be making—though, fortunately, editors in most of the rest of the world saw things very differently.

We are used to the state claiming that our journalism has caused harm. That’s what the US government claimed with Daniel Ellsberg over the Pentagon Papers. (Nixon’s chief of staff, Alexander Haig, described the leak as “a devastating…security breach of the greatest magnitude of anything I’ve ever seen.”) They made similar noises over Wikileaks. In both cases, in time, the claims of harm melted away.

This is not to claim that the Snowden revelations did no harm to the intelligence capabilities of one or two Western powers. We cannot meaningfully test those claims. I have been told on good authority that some of the Snowden revelations did impair some intelligence gathering. I have equally been told—by a number of people on what I would consider equally good authority—that The Guardian’s journalism caused no harm.

Whenever I hear members of the security services claiming the bad guys are “going dark” on them, I think of an essay with that very title by professor Peter Swire, an internet, privacy, and encryption expert who worked at the White House, and was part of President Obama’s review panel into the issues raised by Snowden.

“Due to changing technology, there are indeed specific ways that law enforcement and national security agencies lose specific previous capabilities’” he wrote in his November 2011 essay. “These specific losses, however, are more than offset by massive gains. Public debates should recognize that we are truly in a golden age of surveillance. By understanding that, we can reject calls for bad encryption policy. More generally, we should critically assess a wide range of proposals, and build a more secure computing and communications infrastructure.”

In the Pentagon Papers case the US Supreme Court displayed a clearer grasp of the duties and freedoms of the press than some British editors during this strange period in 2013. Back in 1972 the court supported a standard that would make it virtually impossible for the state to censor the press by claiming harm.

The judgment protected the press unless a proposed story threatened “direct, immediate, and irreparable damage to our nation or its people.” Two of the Supreme Court judges went further, believing the First Amendment to be absolute. Justice Black wrote: “in revealing the workings of government that led to the Vietnam War, the newspapers did precisely that which the Founders hoped and trusted they would do.”

The majority 6-3 decision by the Supreme Court echoed some of the language of a judge in an earlier hearing: “The security of the Nation is not at the ramparts alone. Security also lies in the value of our free institutions. A cantankerous press, an obstinate press, an ubiquitous press must be suffered by those in authority in order to preserve the even greater values of freedom of expression and the right of the people to know.”

The Pentagon Papers judgment was hugely significant because it removed the threat of prior restraint, or censorship over such stories. In other words, the judges absolutely believed it was appropriate for responsible journalists to make careful decisions about the public interest in publication—and not defer to the state to decide on their behalf.

That, surely, is a proper statement of the role of a truly independent press. But removing the threat of prior intervention is also enormously helpful in allowing journalists and editors to get a sense of any possible harm that might be caused by publication of stories about national security. Take away the possibility that the state will march into newspaper offices and seize material, arrest people, or injunct publication and it’s immediately possible to have a calmer conversation.

The reverse was true in Britain, where the state (after an initial lull) did the opposite: making explicit threats to prevent publication and/or seize the source material (which they did, anyway, using terror laws against Glenn Greenwald’s partner, David Miranda, at Heathrow Airport.)

That attitude on behalf of the British state—which, of course, can only have been bolstered by the sight of other editors and journalists deciding that the state must, indeed, have the final say—made mature conversations considerably easier in New York and Washington than in London. That’s surely something to ponder in the aftermath of Snowden, and on the assumption that Chelsea Manning and Snowden are unlikely to be the last of the whistleblowers.

The spooks and officials and civil servants will surely also be pondering the question—much discussed during the story itself—of who gets to call themselves a journalist.

At The Guardian, we didn’t spend very much time wondering whether Glenn Greenwald was a proper “journalist” or not. He is someone of strong passions and some rigor. He campaigns, but he also reports. He has strong views and wants to influence the debate but is also deeply knowledgeable about the things that concern, or even obsess, him. He worked very well in conjunction with our (more traditional in every sense) correspondent, Ewen Macaskill.

Other journalist commentators and legislators were not sure that Glenn should be regarded as a “proper” journalist. Too passionate, too keen to sway the argument, too argumentative and so on.

It’s a pretty big issue, and not only for journalists. Parts of the British state and government might have been fed up with The Guardian. But, by insisting that the London-based source material must be destroyed, British officials showed no evidence of thinking through how, or whether, they would deal with Glenn instead. Or even how they would deal with the fact that The Guardian had back-up copies of documents in the offices of Pro Publica and The New York Times.

They made us smash up our hard discs. But we didn’t stop publishing. To some, the image of a gouged-out Guardian computer circuit board was a sinister one. The mayor of Leipzig, when he visited my office, found it a chilling one, for reasons that are still within living memory of millions of Germans.

But, just as there is no single public interest, there can be no single view of what happened during the Snowden affair. Over time I began to find the image of destroyed computers both chilling and an icon of optimism—precisely because we went on publishing.

The internet is the thing they fear. The thing they want to master. The space in which we may all find darkness as well as light. But the very reasons the State wants to tame, penetrate and control the digital universe are the same reasons which make it an instrument of liberty. What was unpublishable in Britain was publishable elsewhere. Infuriating to the British state, no doubt. But, we would all agree, wonderful if the information in question was trying to escape the control of China, or Turkey or Russia or Syria.

So Snowden opened our eyes to multiple, sometimes competing and clashing public interests—including those represented by corporations, civil libertarians, intelligence agencies, lawyers, journalists and politicians.

It feels to me that we still have to do full credit to the full array of things to which Snowden was trying to draw our attention—the full picture of jostling public interests to do with journalism, the law, intelligence, terrorism, international relations, commerce, privacy, politics, oversight, civil liberties, technology, encryption, security, confidentiality, and freedom.

Western politicians—by cleverly reducing the arguments to privacy versus security or free speech versus terror—managed to distract attention away from the substantive issues at the heart of Snowden. But they remain there and they’re important—and I suspect we will still be discussing them in 20 years time.

Alan Rusbridger was formerly the editor in chief of The Guardian and The Observer in London.