SNOOPING SCANDAL RAISES PROTECTION OF SOURCES TO A NEW LEVEL

Fifty years after US President John F. Kennedy delivered his famous "Ich bin ein Berliner" speech in West Berlin, Barack Obama tried to replicate history by delivering a rousing  speech in front of the Brandenburg Gate. However recent revelations about the National Security Agency’s Boundless Informant spying programme seem to have dented the “Obamamania” that kept his popularity so high for many years. And given German history, it is not surprising to hear so many scornful comments, including a member of German Parliament likening Prism to “American-style Stasi tactics”.

Obama’s visit could not come at a worse time with WikiLeaks’ Assange marking one year since he walked in at the Ecuadorian embassy to seek refuge, the trial of private Bradley Manning, the source of the leaks, opening in a military courtroom in Fort Meade in Maryland and the NSA spying scandal, the most far-reaching leak since the Pentagon Papers in the 70s.

Throwing oil on the fire, FBI director Robert Mueller admitted to the Senate intelligence committee that he used drones to spy on citizens in US soil, triggering a wider debate. “Governments will use whatever technology is available to them to combat their primary enemy – which is their own population," wrote Noam Chomsky yesterday morning in the London Guardian.

Many years ago, the IFJ warned about spying on journalists. We strongly protested when the EU made fundamental changes to the 1997 EC Directive on privacy and telecommunications allowing states to introduce new laws requiring communications providers to keep traffic data and make it accessible to law enforcement agencies.

We knew then that this was the tip of the iceberg and we are not surprising to know now how agencies, such the National Security Agency in the US or GCHQ in the UK, have been spying on their citizens. In the case of GCHQ, they have even admitted spying on delegates to G20 summits and international conferences that have nothing to do with terrorism or crime.

This has now triggered the widest debate worldwide. There are those who consider Assange, Manning and Snowden to be heroes and those who berate them as traitors for having revealed important secrets of governments. The Q&A session by Snowden arranged for the Guardian was dissected by mainstream media everywhere and tens of thousands of tweets were devoted to it.

Other equally furious debates have been focusing on the effectiveness of the “oversight” procedures, the chilling effect on the open Internet, the lack of transparency and the overarching powers of the Fisa court in the US. These are important questions, but equally important is how all this, both the snooping and the attacks on sources, is affecting journalists.

The White House spying scandal on Associated Press journalists was not the first instance of eavesdropping on journalists and more incriminating evidence coming out all the time show that internet snooping by the NSA will get even worse now that it is revealed they may not even need a warrant. Crucially the issue that is at the heart of journalists’ preoccupation – protection of sources – is not even debated.

All the three main whistleblowers are now been hounded with a vengeance: Assange holed up in the Ecuadorian embassy in London trying to avoid being extradited to Sweden from where he fears he would be sent to the US to face potential espionage charges. Manning’s trial has just opened and, although prosecutors said they will not ask for the death penalty, the most serious of the charges, “aiding the enemy,” can get him prison for life.  As for Edward Snowden, by and large the most wanted man, he has gone underground for fear of might happen to him. His future looks grim as US officials queue up to demonise him almost daily. From the days of Nixon, the only reaction from governments has been to destroy the credibility of any whistleblower as they seek to distract attention from their own wrongdoings. For journalists, protecting their sources may well become the biggest challenge for a free press and a cardinal task, perhaps as important as tackling the power of secrecy.

IRAN PRESIDENT-ELECT PLEDGES “HIS BEST” TO RE-OPEN JOURNALISTS’ UNION

Many governments are upbeat following the election of Rohani as Iran’s new president, invariably described as a “potential hope” for Iran.  The White House even used his clerical title “Sayyid” when it congratulated him for his victory and is concentrating in setting new conditions to prepare a new round of talks on Iran’s nuclear programme.

After all, Rohani has all the credentials to act as a proxy for the reformist camp in Iran – a solid by-product of the religious class, a skilled negotiator having cut his teeth in the minefields of nuclear talks, a charismatic leader having proved he could capture a big chunk of his citizens in the quest for a better life and promising to wrest Iran from its debilitating stand-off with the West.

At his first press conference attended by hundreds of journalists, Rohani showcased his credentials when he was asked about his plans. He displayed in particular powerful skills as a seasoned diplomat when hundreds of journalists packed his first press conference and tested his pragmatism.

Asked in particular about his attitude to journalists, and by implication to freedom of expression and press freedom, he made no groundbreaking pronouncement on journalists still in prison but was very clear about a specific question about the future of the journalists’ association.  Although he did not make any open promise to re-open the association, closed down since 2009, he was unambiguous about the role of unions. “Any kind of syndicate or guild needs to be activated based on law because syndicates are the best way to run the affairs of society. The running of social affairs needs to be assigned and delegated to the guilds and syndicates themselves. I will try my best” he replied.

The key question remains how much room for manoeuvre will he be allowed if indeed he is to usher in a historical shift in the fortunes of Iran.

REGIONAL PRESS BARON FORECASTS JOURNALISM “WITHOUT HUMAN INTERFACE”

When David Montgomery left the London Daily Mirror in 1999, not many put their money on him becoming a European media baron. In a blizzard of deals, Montgomery quickly built in less than a decade an empire, Mecom, assembling 300 regional newspapers in five European countries, employing some 11,000 and generating revenues of GBP 1.2bn.

Montgomery quickly siphoned off all the bargains when he found that in mainland Europe, regional newspapers sell for slightly more than one times revenue; he also took advantage of the massive subscription lists to start hawking wine, holidays and financial services to its 1.4 million subscribers across Europe.

But it was his incongruous ideas about “new ways of working” that raised suspicion everywhere as he became the bête noire of politicians, irritated editors and concerned readers. After he acquired a newspaper in Germany, the editor splashed his picture upside down captioned “Nein”.

Setting his sight, Montgomery pompously announced he would usher in his own British model higher up the food chain as part of a newsroom revolution to help claim back revenue lost. His vision was brutal and close to what Murdoch did in Britain – out go decent salaries and editorial integrity as he rolls in cost cutting and profit boosting measures.

His innovative ways of keeping costs down have yet to produce commanding results as Monty fell foul of his repeated assertions that the traditional print media business model was now "economically bankrupt". He was forced to sell off some of his newspapers in Norway to Polaris Media to raise capital to face up to increased financial difficulties.

He kept however making headlines with his vision of newspapers of the future. A few years ago he proclaimed sub-editors in newsroom to be soon out of business. More recently he predicted that the days of Editors-in-chief were numbered to be replaced by content directors.

Last week, speaking at a meeting of the Culture, Media and Sport select committee at the UK Parliament, he went as far as to forecast that “much of the ‘human interface’ involved in local news publishing will disappear within four years.”

Having just acquired for his Local World group over 100 local papers from the UK’s Northcliffe regional group, he told MPs that the local news industry “cannot sustain a model from the middle ages”, he described as highly wasteful, “where a single journalist goes out on a single story, comes back and writes it up”.  Journalists of the future, he said, would become “harvesters” of content.  He may be fooling MPs but surely not readers who know the difference between real stories and harvested contents.

SECURITATE PRACTICES STILL IN FORCE AT ROMANIAN BROADCASTER

There used to be a time when the European Community, as the EU was first called, wouldn’t contemplate admitting in the club a country tainted with abuse of civil liberties. Many knocked on its door for years while they cleaned their act and equipped themselves with a modicum of institutions and policies promoting human rights and the basket of universally recognised freedom such as freedom of expression, freedom of association, freedom of assembly and freedom of movement.

Recent enlargement has brought in countries where press freedom and pluralism is still fragile and may even be unobtainable in the near future. Many old democracies look the other way, but not all. A report published last March by the UK House of Lord EU committee reflected that the EU should ensure that new entrants are committed to democracy and that reforms in these countries must be irreversible prior to accession.

Take the example of Romania where the local IFJ affiliate, MediaSind, representing the majority of Romanian journalists, have been engaged in an epic stand off with the management of the Romanian Radio Broadcasting Society which remains run by state appointees as a private fiefdom irrespective of rules and legislation.  

The union claimed that the society’s current CEO, Ovidiu Miculescu, allegedly passed an agreement in the dark old days with the Securitate to spy on journalists. If that was not bad enough the CEO is engaged in a vicious witch-hunt against the union and its leaders. Adrian Moise, who leads the employees’ side in the board of directors and president of the joint trade unions group at the corporation, received the harshest treatment. He was targeted and summarily dismissed on trumped up charges. He says the real motive was that he dared raise with the corporation flagrant breaches of the collective labour agreement and asked questions about the continued practice of political appointments at the head of the corporation.

RBC management continued its harassment of the union by ordering a break in into its offices of the United Trade Union of Employees at the corporation and removing documents and archives – something they admit. In a letter sent to me they say that “The documents and property belonging to the union led by Mr. Adrian Moise are stored in good conditions, in compliance with the legislation in force and internal rules, and Mr. Adrian Moise has free access to it at any moment, a right that he does not want to exercise.” Media Sind has now complained to the Prosecutor’s Office at the High Court of Cassation and Justice and will take, with the help of the IFJ, their case to the ILO.

Harassing trade unions, sacking their officials, breaking by force into their offices may have been bread and butter practices of Securitate, but they should have no place in a Europe of 2013.

NEW THREATS TO JOURNALISTIC SOURCES AND MATERIAL MUST BE STOPPED

The White House spying scandal has now become a hot political potato calling into question the commitment of major US state institutions to the principles of the First amendment. Similar intrusions have become almost routine within many old European democracies.

In the UK, more and more journalists, in particular photographers are now frequently summoned by the courts to respond to orders to hand over footage of public disorder events to the police. Jason Parkinson, a video journalist, had on several occasions been forced to fight production orders with the support of his union, the NUJ.  In some cases, like his shooting of the Dale Farm eviction, his union led an eight-month battle in partnership with the BBC, ITN, Sky and Hardcash Productions that ended in victory at the Royal Courts of Justice. But the production orders continue to fall hard and fast.

A few years ago, five of Britain’s largest news organisations – The Guardian, the Times, Financial Times, the Independent and Reuters – faced sequestration of their assets and potentially crippling fines for refusing to help track down the source of an embarrassing leak, involving Interbrew, a group of South African Breweries. They won their case.

Journalists in Europe have also been facing similar threats in increasing numbers of cases in many countries, many of which ended up at the European Court of Human Rights. Last June, the court ruled on a case brought by journalists in France, following searches of the newsrooms of the French newspapers, L’Equipe and Le Point, and the confiscations of material. Given that the French judiciary system failed to recognise a violation of article 10 of the European Convention on Human Rights, the European Court was asked. It not only reaffirmed its jurisprudence in this regard but also extended it, stressing that “the rights of journalists to protect their sources shall not be considered as a privilege that can be granted or withdrawn on the basis of the legality or illegality of these sources, but shall be considered as an inalienable right to information commanding the highest  considerable.”

The ECHR affirmed its authority on this matter by making a landmark ruling as far back as the 1990s in the case of a young British journalist, Bill Goodwin working for The Engineer magazine, who was hauled in front of the courts and asked to reveal his sources who passed information on the financial performance of a computer software company, Tetra. Goodwin battled in the English courts and it is only when he took his case to the ECHR that he won seven years later.

All these cases have put the ECHR in the driving seat as the only body that can enforce Article 10 of the European Convention on Human Rights, which guarantees freedom of expression and the protection of journalistic sources.

As if these attacks were not enough, the British coalition government is now preparing legislation in its Communications Data Bill posing even a bigger threat to journalists and to the privacy of citizens’ electronic data. The bill would give power to the government to order internet companies such Facebook, BT Virgin Media and Sky to collect and store the communications data relating to all of the traffic they deal with. Worse still, its law enforcement agencies may be able to trawl that data and cross reference it with other data sources through a communications data search engine, revealing social connections and confidential communication between journalists and their sources. 

Journalists, academics and cyber-security experts are up in arms about it and are gathering the widest coalition, supported by the IFJ, to force the UK government to drop the bill.

OBAMA ADMINISTRATION IN DAMAGE CONTROL

Days after the White House spy scandal continued to send shock throughout US media, the Obama administration is firing on four cylinders to repair the damage.

 

In an apparent act of damage control, senators are reheating old media-protecting legislation at the request of the White House. Senator Schumer announced that he will re-introduce an old bill, the Free Flow of Information Act, which was kicked in long grass back in 2009. The bill would protect journalists from being compelled to testify about their confidential sources until all other avenues are exhausted and gives priority to the public interest.

Shield legislation is supposed to protect journalists should they refuse to reveal their confidential sources, unless the government can provide a "reasonable" justification for its request that outweighs a journalists’ right to keep their sources confidential.

Very little is said that Obama did not support this law at the time. There is also some confusion about whether the administration now supports a different version of the bill that may significantly weaken journalists’ protection, that is if they refuse to disclose confidential sources who leak material about national security. This is where a fudge is being made by a government seeking a far broader national security exemption and querying the very definition of who is a “legitimate” journalist.

Whatever the contents of the new bill being talked about, there is a big question mark about Obama’s professed commitment to “unfettered investigative journalism.” Obama’s record in office does not inspire confidence as it does not square with his prosecution of twice as many leakers as all previous administrations combined.

Obama’s opponents say he has never been a champion of civil liberties. They say that the AP spying scandal is part of his war on whistleblowers, including the main actors in Wikileaks.  They dismiss Obama’s pushing of such a law now as "Obama's strongest political maneuver at the moment to shore up his civil libertarian credentials," according to Jonathan Chait at New York magazine.

As Obama’s administration continued its attempt to repair the damage, it did not concur with recent declarations by its most trusted civil servants, such as Attorney General Eric Holder. Appearing in front of the House Judiciary Committee to throw some light on the department’s decision to pursue the AP phone records, he deployed huge skills to whitewash such an unprecedented assault on press freedom.

He started by giving his support for the expansion of police state measures pursued in the name of “war on terror” and justified unreservedly the actions of the Department of Justice. “We’ve utilised essential intelligence-gathering and surveillance capabilities in a manner that’s consistent with the rule of law, and with our most treasured values.” he said. Meanwhile the department still rejects demands to return the telephone records it has subpoenaed, throwing doubt on Obama’s much trumpeted belief in “unfettered investigative journalism”.

WHITE HOUSE SPYING ON JOURNALISTS ECHOES NIXON DIRTY TRICKS

I once remonstrated about the impact of draconian measures used to counter terrorism on journalists, citing snooping and surveillance cases, particularly in old democracies, where national intelligence services have been eavesdropping on journalists.  I cited the case of German Telekom which was caught misusing data retention to spy on journalists and trade unionists and the case of the civil servants at the Dutch Ministry of Social Affairs who admitted they have been hacking into the computers of the GPD news agency and secretly monitoring work prepared by journalists. But all these cases, and they are dozens of them, pale in significance when compared to the White House AP scandal, a massive and unprecedented intrusion.

In this instance, the Department of Justice subpoenaed two months of record related to 20 telephone lines, including the records of major Associated Press bureaux and the home and cell phones of individual journalists.

No journalist in Washington could remember such overreaching action that calls into question the very integrity of the Department of Justice Board and its ability to balance its power against the First Amendment rights of journalists, including matters touching on national security which are at the heart of the case. First Amendment lawyer Floyd Abrams was quoted saying that this was “certainly one of the most intense intrusions by the government into a pressroom that I can remember”.

The Department tried to justify its operation in its effort to discover who told AP about the failed al-Qaeda plot in Yemen. But the AP story about the CIA operation, published in May last year, was not deemed by anybody, not least Obama top counter terrorism’s adviser, John Brennan, to be posing a threat. So what made the Department of Justice’s number two, Deputy General Attorney James Cole take the decision to authorise the subpoena?

In doing so he seems to have broken many of the guidelines as he was reminded in a letter by the Reporters Committee for the Freedom of the Press, signed by 50 media organisations, to his boss Attorney General Eric Holder Jr. The guidelines are specific about the scope of the inquiry, the need to exhaust alternative means of obtaining information, the obligation to inform and negotiate and most importantly to inform media and journalists about their intent.

The IFJ believes that this massive intrusion amounts to press intimidation and is a direct attack on journalists’ rights. No matter their arguments about national security, the US Justice Department officials have driven a coach and horses through the First Amendment and their action will have a chilling effect on press freedom in the United States for years to come.