FISA and Journalists

Chris Hedges — one of my favorite writers — has an op-ed in the Los Angeles Times about the chilling effect the new FISA law will have on journalists and their sources:

This law will cripple the work of those of us who as reporters communicate regularly with people overseas, especially those in the Middle East. It will intimidate dissidents, human rights activists and courageous officials who seek to expose the lies of our government or governments allied with ours. It will hang like the sword of Damocles over all who dare to defy the official versions of events. It leaves open the possibility of retribution and invites the potential for abuse by those whose concern is not with national security but with the consolidation of their own power.

I have joined an ACLU lawsuit challenging the new law along with other journalists, human rights organizations and defense attorneys who also rely on confidentiality to do their work. I have joined not only because this law takes aim at my work but because I believe it signals a serious erosion of safeguards that make possible our democratic state. Laws and their just application are the only protection we have as citizens. Once the law is changed to permit the impermissible, we have no recourse with which to fight back.

I spent nearly 20 years as a foreign correspondent for the New York Times, as well as other news organizations. I covered the conflict in the Middle East for seven years. I have friends and colleagues in Jerusalem, Gaza, Cairo, Damascus, Tehran, Baghdad and Beirut. I could easily be one of those innocent Americans who are spied on under the government’s new surveillance authority.

The reach of such surveillance has already hampered my work. I was once told about a showdown between a U.S. warship and the Iranian navy that had the potential to escalate into a military conflict. I contacted someone who was on the ship at the time of the alleged incident and who reportedly had photos. His first question was whether my phone and e-mails were being monitored.

What could I say? How could I know? I offered to travel to see him but, frightened of retribution, he refused. I do not know if the man’s story is true. I only know that the fear of surveillance made it impossible for me to determine its veracity. Under this law, all those who hold information that could embarrass and expose the lies of those in power will have similar fears. Confidentiality, and the understanding that as a reporter I will honor this confidentiality, permits a free press to function. Take it away and a free press withers and dies.

This is another huge hole in the argument that the new law “only” targets international communications. Probably most of the contacts in a foreign correspondent’s Rolodex are not American, and live outside the United States.

Kevin Drum sees at least two relevant issues:

… First, under the old law there were ways for reporters to be relatively sure that they could evade surveillance. Use random pay phones, anonymous email accounts, etc. After all, the government can’t listen to every conversation, can they? Well, now they can, and reporters’ sources know it. It’s going to be a lot harder to convince them that it’s safe to talk.

Second, reporters who cover terrorism and the Middle East are pretty obvious targets for NSA surveillance since they talk to lots of bad guys. This surveillance is illegal, of course, and under the old FISA law it was hard to get around this because the FISA court had to issue a warrant if NSA wanted to tap the phone of an American citizen. But now? They don’t need to directly tap reporters’ phones. They’re listening to every piece of traffic that goes through American switches and NSA computer software is picking out everything that seems interesting — and no matter what they say, doesn’t it seem likely that their algorithms are going to be tweaked to (accidentally! unintentionally!) pick up an awful lot of reporter chatter? It’ll eventually be “minimized,” but algorithms are infinitely malleable, they’re hard for laymen to understand, and they can almost certainly be changed to accomplish the same thing if a judge happens to order modifications. What’s more, it hardly matters: the new law allows NSA to hold on to all those minimized conversations forever even if a judge eventually decides the surveillance was illegal.

Daniel Larison makes the money point:

… Even if these communications are not used against the sources in some way, the fear that they could be might very well keep many of the media’s foreign sources from communicating with American reporters here. Of course, as with every government usurpation, the point is not even a matter of whether such power will be used in such an abusive way, but that the government should not have such a power to engage in surveillance without cause and without oversight at all. The very existence of such a power is an invitation to abuse, and in the coming years some future administration is going to remind us of this basic truth by using these powers against its critics and political opponents.

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