National Security Agency surveillance of civilian communications and a culture of government secrecy are undermining two pillars of American democracy – the freedom of the press and attorney-client privilege – all in the name of national security, two civil rights organizations say in a new report.
Researchers surveyed 46 journalists, 42 lawyers, and several current and former government officials about the extent and impact of government surveillance and restriction of government information in the United States. Their findings were issued as part of a joint report produced by the American Civil Liberties Union and the Human Rights Watch and released Monday.
Many of the journalists surveyed said that to persuade fearful sources to speak off the record they felt pressured to install high-end encryption software on their computers or avoid online communications entirely. And lawyers are resorting to using untraceable “burner” phones to communicate with clients, the researchers were told.
"The work of journalists and lawyers is central to our democracy," report author Alex Sinha, an Aryeh Neier Human Rights Fellow at Human Rights Watch and the American Civil Liberties Union, said in a statement Monday. "When their work suffers, so do we."
An uptick in the prosecution of government leaks and increasingly stringent programs designed to discourage officials from sharing information outside the government have constricted the flow of information concerning government activity that is available to journalists. As a result, government sources have been much more guarded in what they share with the press, even concerning unclassified matters, journalists surveyed by the researchers said.
“People are increasingly scared to talk about anything,” one Pulitzer Prize-winning reporter told researchers.
Securing official permission to speak directly with a government source can take weeks. Convincing a source to go on the record anonymously increasingly requires elaborate measures to avoid detection.
“I don’t want the government to force me to act like a spy. I’m not a spy; I’m a journalist,” Washington Post reporter Adam Goldman told the researchers.
Where journalists feel that the US government has clamped down on the flow of public information, lawyers are feeling that government surveillance is intruding into confidential communications that are protected by attorney-client privilege. One attorney told researchers that many colleagues are turning to measures more frequently associated with drug dealers than lawyers, such as purchasing disposable “burner phones” to communicate with clients.
While the US government has maintained that it stops monitoring communications when they discover that they might include someone under known indictment, several attorneys expressed skepticism that such restraint is uniformly applied. A few lawyers told researchers that they felt duty-bound to warn their clients that the government could be monitoring communications.
“Given the now publicly admitted revelations that there is no privacy in communications, including those between attorneys and their clients, I feel ethically obligated to tell all clients that I can’t guarantee anything [they] say is privileged … or will remain confidential,” attorney Linda Moreno noted.
Such blows in constitutionally guaranteed press freedoms and right to counsel fracture American democracy and set “a terrible example for other countries,” the report authors write.
“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,” Mr. Sinha said. “The US should genuinely confront the fact that its massive surveillance programs are damaging many critically important rights.”
To rein in what the report’s authors see as government infringement on Americans’ rights, they urge the United States to take several steps, including the following:
• Narrow the scope of surveillance authorities
• Strengthen protections provided by attorney-client privelege
• Disclose additional information about surveillance programs to the public
• Reduce government secrecy and restrictions on official contact with the media
• Enhance protections for national-security whistleblowers
The House passed a bill in May to curb the NSA's bulk collection of telephone data. It is now under consideration in the Senate.
Material from Reuters was included in this report.