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A Human Rights Watch report has investigated the effect government spying in the US has had on media freedom and the right to counsel.
Large-scale US surveillance is seriously hampering US-based journalists and lawyers in their work, Human Rights Watch and the American Civil Liberties Union have said in a joint report. Surveillance is undermining media freedom and the right to counsel, and ultimately obstructing the American people’s ability to hold their government to account, the groups said.
The report is based on extensive interviews with dozens of journalists, lawyers, and senior US government officials. It documents how national security journalists and lawyers are adopting elaborate steps or otherwise modifying their practices to keep communications, sources, and other confidential information secure in light of revelations of unprecedented US government surveillance of electronic communications and transactions.
The US has long held itself out as a global leader on media freedom. However, journalists interviewed for the report are finding that surveillance is harming their ability to report on matters of great public concern. The report is drawn from interviews with journalists covering intelligence, national security, and law enforcement for outlets including the New York Times, the Associated Press, ABC, and NPR.
Journalists said that surveillance intimidates sources, making them more hesitant to discuss even unclassified issues of public concern. The sources fear they could lose their security clearances, be fired, or – in the worst case – come under criminal investigation.
Many journalists described adopting elaborate techniques in an effort to protect evidence of their interaction with sources. The techniques ranged from using encryption and air-gapped computers (which stay completely isolated from unsecured networks, including the Internet), to communicating with sources through disposable “burner” phones, to abandoning electronic communications altogether. Those cumbersome new techniques are slowing down reporters in their pursuit of increasingly skittish sources, resulting in less information reaching the public.
This situation has a direct effect on the public’s ability to obtain important information about government activities, and on the ability of the media to serve as a check on government, Human Rights Watch and the ACLU found.
For lawyers, large-scale surveillance has created concerns about their ability to meet their professional responsibilities to maintain confidentiality of information related to their clients. Failure to meet those responsibilities can result in discipline through professional organizations, or even lawsuits. The result of the anxieties over confidentiality is the erosion of the right to counsel, a pillar of procedural justice under human rights law and the US Constitution.
The US has an obligation to protect national security, and under human rights standards, it may engage in surveillance to that end, but only to the extent that surveillance is lawful, necessary, and proportionate, and the least intrusive means to protect against tangible threats to national security. Many existing surveillance programs are indiscriminate or overbroad, and threaten freedom of expression, the right to counsel, and the public’s ability to hold its government to account, Human Rights Watch and the ACLU said. Programs allowing surveillance of non-US persons offer even fewer protections. The US should reform its surveillance programs to ensure that they are targeted and legitimate, increase transparency around national security and surveillance matters, and take steps for better protection of whistleblowers and the media, Human Rights Watch and the ACLU said. , said the two organisations.
“The US holds itself out as a model of freedom and democracy, but its own surveillance programs are threatening the values it claims to represent,” Sinha said. “The US should genuinely confront the fact that its massive surveillance programs are damaging many critically important rights.”