Tag Archives: WikiLeaks

Floyd Abrams throws a curveball

Legendary First Amendment lawyer Floyd Abrams delivered the Richard S. Salant Lecture on Freedom of the Press on Thursday evening at Harvard’s Shorenstein Center. And it was something of a surprise.

Rather than railing against the evils of government censorship, Abrams instead chose to focus on situations in which he believes the media have abused their freedoms. He was especially criticial of Julian Assange and WikiLeaks — not a new stance for him, but nevertheless counterintuitive given Abrams’ fierce defense of the First Amendment.

I put together a Storify about Abrams’ talk, which you can view by clicking here.

Edward Snowden and the peril facing journalism

Edward Snowden

Edward Snowden

This commentary was published earlier at The Huffington Post.

The editors of The New York Times appear to have forgotten an important principle: the First Amendment is for all of us, and does not grant any special privileges to the institutional press. Thus if Edward Snowden is prosecuted for leaking classified documents about the National Security Agency’s secret surveillance programs, the news organizations that published those documents could face criminal charges as well.

The possibility that journalists could be in legal jeopardy for doing their jobs seems not to have occurred to whoever wrote an editorial in today’s Times, which argues that Snowden should be prepared to pay the price for civil disobedience by way of his leaks to The Guardian and The Washington Post.

Though the editorial dismisses the absurd notion that Snowden has committed treason, it concludes with this observation, which comes across as semi-sympathetic but contains toxic implications: “Mr. Snowden may well be going to jail for exposing practices that should never have been secret in the first place.”

In fact, if Snowden, as seems likely, is charged under the Espionage Act of 1917, there is nothing to stop the government from going after The Washington Post as well — or The Guardian, if someone would like to seek extradition of Glenn Greenwald, who broke the story, and his editor, Alan Rusbridger.

American journalists in these situations operate on the premise that they are free to publish information even if the source or sources who gave it to them violated the law in obtaining it. That’s largely true — First Amendment protections against censorship are extraordinarily high. The corollary, though, is that there may be consequences to be paid post-publication.

The best-known example is the Pentagon Papers, a case that should be near and dear to the hearts of Times editors. In a 6-3 decision, the U.S. Supreme Court ruled that the Times and the Post could not be prevented from publishing the government’s secret history of the Vietnam War.

But as civil-liberties lawyer Harvey Silverglate pointed out in a 2006 article for The Boston Phoenix, five of the nine justices essentially invited the government to file charges against the Times and the Post after publication — and the Nixon administration was preparing to do just that before it got caught up in the burgeoning Watergate scandal.

Silverglate was concerned that the Times faced possible charges under the Espionage Act for revealing the existence of the Bush administration’s warrantless wiretapping program. Even though the program illegally circumvented the Foreign Intelligence Surveillance Court, then-president George W. Bush called the Times’ reporting “a shameful act” — and Gabriel Schoenfeld, writing in Commentary, was just one on the neocon right who argued that the Times should be prosecuted.

More recently, the Times published many of the WikiLeaks documents exposed by Bradley Manning, who is now on trial and who may face a life sentence. And in 2010 John Cook posted a short piece in Gawker making the commonsense observation that the Times potential liability was precisely the same as that of WikiLeaks founder Julian Assange, who had been targeted by Attorney General Eric Holder. Cook wrote:

So if it was a crime when Assange obtained the database, why wasn’t it a crime when the Times did? The Espionage Act makes no distinctions when it comes to sources of defense information: It’s a crime to “obtain [it] from any person, or from any source whatever.” Assange got it from Manning, the Times got it from the Guardian; both transactions are equally criminal under the act.

More than a year ago, I argued that President Barack Obama was engaged in a “war on journalism” stemming from his administration’s obsession with rooting out leakers. Recently we learned that the Justice Department had spied on the Associated Press and on Fox News reporter James Rosen, and had even gotten a judge to sign a search warrant identifying Rosen as a criminal co-conspirator. Now U.S. Rep. Peter King, R-N.Y., is calling for journalists to be prosecuted for publishing the NSA documents leaked by Snowden.

This is a moment of great peril for journalism. With 56 percent of Americans saying they don’t mind if the government monitors their phone records, public opinion is hardly on the side of whistleblowers and the news organizations that work with them.

Whether we approve of everything Edward Snowden did or not, The New York Times and others in our craft ought to show more solidarity. If he is in trouble, so are all of us.

AP probe should be a wake-up call for journalists

Trevor TimmBy Trevor Timm

As part of a new leak investigation, the Justice Department has secretly obtained the call records for 20 phone lines owned by the Associated Press, which could put sources for as many as 100 reporters at risk. The AP called the move a “massive and unprecedented intrusion,” saying they “regard this action by the Department of Justice as a serious interference with AP’s constitutional rights to gather and report the news.”

We agree. It’s time to stop looking at all of these leak investigations and prosecutions as ancillary to press freedom; they are a direct attack on it. This should be an important wake-up call for journalists.

While this incident has brought the Justice Department’s crackdown on leakers to a new extreme, it’s important to remember, this storm has been brewing for a while now. In five years, the Obama administration has prosecuted more leakers under the Espionage Act than all other administrations combined, and virtually all these prosecutions have engulfed journalists in one way or another.

As part of this current investigation, we’ve known the FBI has been data-mining government officials’ phone and email records for months, looking for links to journalists on a systematic scale. The Washington Post reported in January, the FBI is using new, “sophisticated software to identify names, key words and phrases embedded in emails and other communications, including text messages, which could lead them to suspects.”

According to the Post, “The FBI also looks at officials’ phone records — who called whom, when, for how long.” Anytime the FBI found a government official has contact with the unknown number of “particular” journalists, FBI agents were “confronting” officials with this information.

A similar leak investigation to the one that has engulfed the AP is aimed at New York Times sources for its investigation into secret U.S. cyberattacks. The government refused to comment if the Justice Department has gone to similar extremes with The New York Times’ phone lines.

Regardless, as The New York Times reported on its front page in August of last year, these leak investigations are “casting a distinct chill over press coverage of national security issues as agencies decline routine interview requests and refuse to provide background briefings.” The Huffington Post recently interviewed several of the nation’s most prominent national security journalists, all of whom confirmed it’s a perilous time for journalists who are reporting on what the government considers secret.

The Justice Department does not deny this. When asked about the Obama administration’s crackdown on leakers last June, a senior Justice Department (DOJ) official told longtime national security reporter Shane Harris that the DOJ is “out for scalps.” Harris’ DOJ source also “made it clear that reporters who talked to sources about classified information were putting themselves at risk of prosecution.”

And it may be about to get worse.

In another leak case, New York Times reporter James Risen has been fighting a subpoena from Obama’s Justice Department for years. The Obama DOJ is after his sources for a chapter in his book “State of War.” (You can read the incredible chapter at issue, about a spectacularly bungled CIA mission that allegedly handed nuclear bomb blueprints to Iran, here.)

The Obama administration inherited the case from the Bush administration, and despite the fact that the district court judge sided with Risen during both the grand jury and trial, DOJ has continued to appeal the case. Last May, the DOJ argued before the Fourth Circuit that reporters’ privilege does not exist at all for national security reporters. Disturbingly, the Justice Department said that Risen protecting his sources was “analogous” to refusing to testify about receiving drugs from a confidential source.

The Fourth Circuit Appeals Court decision could come down any day now, and it will undoubtedly be the most important press freedom decision in a decade or more.

And while it has curiously receded from national headlines, the Justice Department also still has an active grand jury investigation open against WikiLeaks for publishing classified information. If such a prosecution succeeds, it will be open season on media organizations that publish stories that touch on information the government considers secret, putting virtually every national security journalist at risk of prosecution.

In fact, the House of Representatives held a hearing just last July in which multiple congressmen openly discussed throwing New York Times journalists in jail for publishing classified information about secret cyberattacks and CIA drone strikes. By staying quiet about the WikiLeaks grand jury, journalists only increase this risk.

The White House press secretary was quick to state that the administration is “not involved in decisions” in the AP investigation and heard about it from the media. White House officials are under investigation for this particular leak as well, so that’s no surprise. But one should not forget: the White House created this war-on-leaks monster. Congress has only encouraged its expansion, instead of investigating the wrongdoing that many of the leaks exposed.

And now, it’s out of control.

Trevor Timm is co-founder and executive director of the Freedom of the Press Foundation. Republished by permission.

MuckRock.com and the potential power of crowdfunding

Screen Shot 2012-12-18 at 7.58.38 PMThis interview was previously published at the Nieman Journalism Lab.

The first time I heard of Michael Morisy and MuckRock.com was in 2010, after the site was targeted by a bureaucrat working for Massachusetts Governor Deval Patrick.

It seems that MuckRock, using the state’s open records law, had obtained information about how food stamps were being used in grocery stores. The data, which did not name any individual food-stamp recipients, had been lawfully requested and lawfully obtained. But that didn’t stop said bureaucrat from threatening Morisy and his tech partner, Mitchell Kotler, with fines and even imprisonment if they refused to remove the documents from their site.

They refused. And the bureaucrat said it had all been a mistake.

Now Morisy is preparing to expand MuckRock’s mission of filing freedom-of-information requests with various government agencies and posting them online for all to see. The just-launched Freedom of the Press Foundation has identified MuckRock as one of four news organizations that will benefit from its system of crowdsourced donations. The best-known of the four is WikiLeaks.

The foundation’s board is a who’s who of media activists, including Pentagon Papers whistleblower Daniel Ellsberg, Electronic Frontier Foundation co-founder John Perry Barlow, Josh Stearns of Free Press and the journalist Glenn Greenwald, now with the Guardian.

“The Freedom of the Press Foundation can be a first step away from the edge of a cliff,” writes Dan Gillmor, author of “We the Media” and “Mediactive.” “But it needs to be recognized and used by as many people as possible, as fast as possible. And journalists, in particular, need to offer their support in every way. This is ultimately about their future, whether they recognize it or not. But it’s more fundamentally about all of us.”

What follows is a lightly edited email interview I conducted with Morisy about MuckRock, the Freedom of the Press Foundation, and what comes next.

Q: Tell me a little bit about MuckRock and its origins.

A: I’d been really frustrated that we hadn’t seen much innovation in newsgathering generated by journalistic organizations. You see lots of innovations in how stories are told, but they’ve been generated by companies like Twitter, Facebook, and Instagram — all wonderful organizations, but ones which generate news as a byproduct, and where the journalistic function is by far secondary to business considerations. My co-founder and I wanted to create a startup where creating news was a core part of the business, and where the news was both user-generated and -directed as well as verified.

Since requests on MuckRock come from — and are paid for by — our users, we are able to align our business and editorial goals almost perfectly. We don’t sell advertising, we don’t put up paywalls. We just help people investigate the issues they want to, and then share those results with the world.

We’ve know been growing as a business and as an editorial operation for three years, with a part-time news editor and two fantastic interns.

Q: What sorts of projects are you involved in today?

A: Our biggest project to date is a partnership with the Electronic Frontier Foundation (EFF) called the Drone Census, which has broken a lot of major stories around the country. We let anyone submit an agency’s information and then we follow up with a public records request. So far we’ve submitted 263 requests to state, local, and federal agencies, the vast majority of which were suggested by the public. And it’s helped shed more light on a program that police departments and drone manufacturers are very purposefully keeping quiet.

We’ve also gotten to cover some really interesting local stories, such as getting the late Boston mayor Kevin White’s FBI file and taking an inside look at the timing of a drug raid, as well as national stories.

Q: What is the nature of your relationship with the Boston Globe?

A: MuckRock was invited to be part of the Globe Lab‘s incubator program a little over a year ago. We’ve received free office space and, most important, a good mailbox to receive the dozens of responses we get back every day. It’s also given us a chance to bounce ideas back and forth with their technology and editorial teams, and we’re in the early stages of a collaborative project with them.

They also recently launched The Hive, a section focused on startups in the Boston area. Given my experience running one and my editorial background, when they were looking for someone to manage and report for that section, I was a natural fit and thrilled to be invited to cover startups in the area. It’s a dream job, and it means I now have two desks, and often wear two hats inside the same building.

Q: How did you get involved in the Freedom of the Press Foundation?

A: Trevor Timm has been our main point of contact with the EFF working on the drone project, and he’s been absolutely great to work with. He reached out to us about a week ago and said that he was working on a new venture to help crowdfund investigative journalism projects, and we were honored to be thought of. It turns out he is the executive director of the Freedom of the Press Foundation, so we got lucky to be working with the right people.

Q: Do you have a goal for how much money you’re hoping to raise through the foundation? What kinds of projects would you like to fund if you’re successful?

A: We’re kind of going into this with an open mind and a hopeful heart. Any amount raised is greatly appreciated, but this will help jumpstart several new projects similar in size and scope to the drone effort, which has had an amazing response, including nods from the New York Times and many other outlets. It may also give us the flexibility to fund important stories that maybe are not as sexy. We were really interested in funding an investigation into MBTA price jumps for the disabled, for example, but our crowdfunding efforts on Spot.us are essentially dead on arrival. Having a reserve will allow us to take gambles on stories like that without having to choose between making rent and breaking news.

Obama’s war on journalism and free expression

President Obama

This commentary also appears at the Huffington Post.

Kudos to David Carr of the New York Times for shining a light on an issue that doesn’t attract nearly the attention that it should: the Obama administration’s abuse of the Espionage Act, which in turn has led to a virtual war on journalism and free expression.

As Carr notes, the Espionage Act, approved in 1917 during the hysteria of World War I, was used three times before President Obama took office in 2009 — and six times during his presidency.

We live in a dangerous era, and there have been prosecutions with which it may be hard to disagree. Carr cites the case of Bradley Manning, who’s been charged with stealing national-security documents that are at the heart of the WikiLeaks disclosures.

But Carr also writes that leak prosecutions often seem to be aimed more at punishing people for embarrassing the government than for genuinely damaging national security. In a particularly ironic case, a former CIA officer named John Kiriakou has been charged with leaking the names of agents involved in interrogating terrorism suspects. Carr points out that “none of the individuals who engaged in or authorized the waterboarding of terror suspects have been prosecuted.”

(More about the Kiriakou case from the Reporters Committee for Freedom of the Press. Kiriakou has denied the charges.)

Kudos, too, to Jake Tapper of ABC News, whose confrontation with White House press secretary Jay Carney is the hook Carr uses to delve into the issue. A fuller account of Tapper and Carney’s exchange can be found here. Here’s Tapper responding to Carney’s praise for the journalist Marie Colvin, killed in Syria last week:

How does that square with the fact that this administration has been so aggressively trying to stop aggressive journalism in the United States by using the Espionage Act to take whistleblowers to court? You’re — currently I think that you’ve invoked it the sixth time, and before the Obama administration, it had only been used three times in history. You’re — this is the sixth time you’re suing a CIA officer for allegedly providing information in 2009 about CIA torture. Certainly that’s something that’s in the public interest of the United States. The administration is taking this person to court. There just seems to be disconnect here. You want aggressive journalism abroad; you just don’t want it in the United States.

I suspect Obama and Attorney General Eric Holder have gotten a pass from many liberals because they believe a Republican president would be even worse on such matters. The fact is, though, that no president has been more aggressive than Obama in prosecuting suspected leakers.

And given the way the media work, it’s no surprise that they’ve said little, since the heart of what they do is respond to accusations. The storyline being promoted by Mitt Romney, Rick Santorum and Newt Gingrich is that Obama is weak on national security, so they’re certainly not going to criticize the president for being too tough on leakers. Thus, no story.

When the government wants to take suspected leakers to court, it inevitably demands that journalists reveal their confidential sources. There is no constitutionally recognized right for journalists to protect their sources, and no federal shield law, which means that such cases have a considerable chilling effect on tough reporting.

In 2006, “Frontline” interviewed Mark Corallo, who was director of public affairs for George W. Bush’s first attorney general, John Ashcroft. In this transcript, you’ll see that Corallo, with the support of Ashcroft — not generally thought of as a friend of the First Amendment — approved only one subpoena for a journalist out of “dozens” that were requested. Corallo continued:

I can’t tell you about that case. It was a national-security case. I believed, after long reflection, that it did put innocent people’s lives in danger, our allies, people in other countries who would be subject to terrorist attacks. The case was so egregious; it was such a horrible instance of unethical behavior by a journalist to boot.

I hope Tapper’s tough questioning and Carr’s column are the beginning of a genuine attempt to hold the Obama White House to account for its repressive policies.

WikiLeaks and the First Amendment

President Obama’s emerging strategy to prosecute WikiLeaks and its founder, Julian Assange, over the leaked State Department cables amounts to a potentially dangerous assault on freedom of the press. Or so I argue in the Guardian.

Nick Daniloff on WikiLeaks

Nick Daniloff

My Northeastern colleague Nicholas Daniloff, a former foreign correspondent for U.S. News & World Report and UPI, was interviewed by the university press office earlier this week about the WikiLeaks story.

Daniloff offers some sharp insights, arguing that the document dump was more good than bad, and that the New York Times acted responsibly by giving the White House an opportunity to request redactions — some of which the Times went along with, some of which it didn’t. Daniloff adds:

[O]ver the long run, a great deal of this will be forgotten or swept under the rug, although older diplomats may well tell young diplomats, “Be careful with the Americans. They are so leaky that what you say may eventually come out. Be discreet; after all, you wouldn’t make copies of your love letters would you?”

Also worth reading: retired Times executive editor Max Frankel (via Jack Shafer), who, writing in the Guardian, offers this no-kidding observation:

Governments must finally acknowledge that secrets shared with millions of “cleared” officials, including lowly army clerks, are not secret. They must decide that the random rubber-stamping of millions of papers and computer files each year does not a security system make.

Meanwhile, Interpol has heightened its efforts to arrest WikiLeaks founder Julian Assange on sexual-assault charges. This Times story makes it sound like the agency isn’t trying very hard. It makes you wonder whether Western governments truly want to bring Assange to justice — or are just trying to discredit him.

Northeastern University photo by Lauren McFalls.