The NSA’s bulk collection of internet and telephone data, with no restrictions related to criminal suspicion, imposes enormous chilling effects on activity covered by the First Amendment. Sources on whom journalists rely fear their anonymity cannot be guaranteed, and whisteblowers fear that revealing government wrongdoing will invoke retaliation. Both situations prevent journalists from performing their constitutional function of holding our democratic government accountable to We the People. Because of the NSA’s bulk collection of internet and telephone data with no limitation related to criminal suspicion, it imposes enormous chilling effects on First Amendment activity. An October 2013 report by the Committee to Protect Journalists noted numerous examples of journalists who feel they must use great caution to protect sources. For example, the report cites that journalists often meet with sources in person, rather than through electronic communication to avoid leaving a “digital trail.” It mentions Washington Post national security reporter Dana Priest’s hesitation to discuss with government officials what she is reporting, out of concern that “it’s all going into one giant computer.” This sentiment was described in an October 4, 2013 letter by several scholars from the Columbia School of Journalism to a surveillance review committee created by President Obama in August 2013:
[I]t is not enough to protect journalists. For a free press to function we must also protect the means of communicating with journalists. At the present time, the NSA has made private electronic communication essentially impossible, at least in practical terms.
Another assault on the press was the Justice Department’s secret collection of the records of more than twenty phone lines of Associated Press journalists in April and May 2012. The government was attempting to identify a source who leaked news of a failed plot to bomb a plane bound for the US from Yemen. But the AP was not notified of the record seizure until after it had been collected. In an address on October 19, AP CEO Gary Pruitt confirmed that since this incident occurred, sources have been more hesitant to speak with AP and other news organizations. He discussed the dangerous example this sets for authoritarian regimes globally, stating:
The actions by the Department of Justice could not have been more tailor-made to comfort authoritarian regimes who want to suppress the news media. ‘The United States does it too,’ they can say.
Beyond surveillance, the Obama administration’s crackdown on whistleblowers has also made government employees, contractors, and journalists fearful about revealing government wrongdoing. The war on whistleblowers went into high gear following the 2010 arrest and subsequent prosecution of Chelsea (nee Bradley) Manning for providing classified information to Wikileaks. The Obama administration became determined to prevent such a leak from occurring again, making Manning one among several whistleblowers to be charged under the Espionage Act.
When Edward Snowden leaked NSA secrets to the Guardian and Washington Post, he explained that Manning’s treatment informed his decision to flee the country. The resulting controversy has exposed whistleblowers to even greater scrutiny. The Espionage Act was passed during World War I to target potential German spies, but is currently being applied to prosecute those who have released information to the public, rather than those who have passed secrets to foreign governments. Only three people were charged under the Espionage Act before Obama became president, while the current administration has used it eight times.
One example is former Central Intelligence Agency (CIA) officer John Kiriakou, who was charged in 2012 for violating the Espionage Act and the Intelligence Identities Protection Act for revealing to a New York Times reporter the name of a covert CIA operative. Kiriakou claimed he believed the agent was retired, but is credited as being the first to disclose the CIA’s use of waterboarding torture, which he did in a 2007 interview with ABC. The espionage charges were ultimately dropped as part of a plea bargain in which Kiriakou was sentenced to thirty months in prison. He has said he did not believe his “case was about a leak. I’ve always believed my case was about torture.” Steve Coll of the Columbia School of Journalism appropriately asked in an April 2013 article, “Which matters more: Kiriakou’s motives or his reliability, or the fact that, however inelegantly, he helped to reveal that a sitting president had ordered international crimes?” It is not only sources that have been affected by government prosecutions, but journalists as well.
James Risen of the New York Times is currently appealing a court order to testify against a former CIA officer charged with revealing classified information on a CIA attempt to disrupt Iran’s nuclear program to Risen. Risen is vowing to go to prison rather than testify. Separately, FOX News reporter James Rosen was named as a co-conspirator in an Epsionage Act case, in order to obtain a warrant for Rosen’s phone and email records. This was in connection with a prosecution of Stephen Jin-Woo Kim who was charged with espionage for giving Rosen information on US intelligence on North Korea’s nuclear weapons program. There may be instances in which the government has a legitimate reason to protect classified information. Intimidating sources through surveillance, however, and pursuing inordinate prosecution undermines the independence of journalists and a free press.