Privacy SOS

Hunted: Government harassment of journalists and attorneys threatens core democratic values

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The US government is spying on reporters and lawyers, threatening the character of US society, find Human Rights Watch and the ACLU in a new report. Attorneys and journalists are supposed to get special protections in the US because these professions are "integral to the safeguarding of rights and transparency in a democracy." Today, the report finds, these guardians of democracy are not only stripped of many of their special privileges; they are actively targeted for government surveillance and harassment.

Journalists interviewed for the report 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.

“People are increasingly scared to talk about anything,” observed one Pulitzer Prize winner, including unclassified matters that are of legitimate public concern. 

Many journalists described adopting elaborate techniques in an environment of tremendous uncertainty 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.

Attorneys, too, are adopting some of the security tactics of drug dealers in order to keep their client communications safe. But attorney-client communications aren't the only target of government harassment infringing on our constitutional rights to a defense and to due process, the report finds.

Lawyers also rely on the free exchange of information with their clients to build trust and develop legal strategy. Concerns over government surveillance are making it harder for attorneys – especially, but not exclusively, defense attorneys – to build trust with their clients or protect their legal strategies. Both problems corrode the ability of lawyers to represent their clients effectively.

As with the journalists, lawyers increasingly feel pressure to adopt strategies to avoid leaving a digital trail that could be monitored. Some use burner phones, others seek out technologies designed to provide security, and still others reported traveling more for in-person meetings. Like journalists, some feel frustrated, and even offended, that they are in this situation. “I’ll be damned if I have to start acting like a drug dealer in order to protect my client’s confidentiality,” said one.

Perhaps most shocking is that some members of the security complex are happy to hear that journalists are having a hard time reporting information about government programs. Former NSA general counsel Bob Deitz told the HRW report authors: "Leaking is against the law. Good. I want criminals to be deterred. Does a cop chill a burglar’s inclination to burgle? Yes."

Read the full report, With Liberty to Monitor All.

© 2021 ACLU of Massachusetts.