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Home » Focus, Media, Policy, Washington, Westminster

Is the Media Taking Free Expression Too Far?

Submitted by on 05 Mar 2014 – 11:20

By Sarah Argersinger, Editorial Researcher, Government Gazette

Edward Snowden is the new Julian Assange, alarming both US and British intelligence agencies. With top secret information being leaked to the public through the media, the concern has arisen that national security is at stake. Snowden has revealed that Australia’s intelligence agency (DSD) has offered to share information about Australian citizens with its major intelligence partners.[1] It has also come up, courtesy of Snowden, that Australia’s spy agencies had attempted to listen to the personal phone calls of Indonesian president Susilo Mambang Yudhoyono, which has caused strain to both countries’ diplomatic relations.[2] Snowden was also responsible for stirring the waters of US-German diplomatic relations when he revealed that the US had been tapping Angela Merkel’s phone since 2002, and that President Obama may have known about it for three years.[3] A more recent article has revealed, though, that Obama may not have known about the phone tapping at all.[4] In addition, recent allegations against Britain’s GCHQ have indicated that individuals’ right to privacy may be jeopardized. Who is really to blame in all of this? Intelligence agencies? Snowden and Assange? Or the media?

A public evidence session of the UK’s Intelligence and Security Committee on the 7th of November 2013 examined some of the controversies surrounding three British intelligence services: GCHQ, MI5, and MI6. Sir Iain Lobban, Director of GCHQ, responded to a question regarding the agency’s collection of information through the tapping of fibre-optic cables:

We do not spend our time listening to the telephone calls or reading the e-mails of the majority, of the vast majority. That would not be proportionate, it would not be legal. We do not do it…If you think of the internet as an enormous hay field, what we are trying to do is to collect hay from those parts of the field that we can get access to and which might be lucrative in terms of containing the needles or the fragments of the needles that we might be interested in, that might help our mission. When we gather the haystack…we are very, very well aware that within that haystack there is going to be plenty of hay which is innocent communications from innocent people…and so we design our queries against that data, to draw out the needles and we do not intrude upon, if you like, the surrounding hay.[5]

He also denied any allegations about circumventing British law (Regulation of Investigatory Powers Act 2000) through the organization’s relationship with the US services.[6]

Sir John Sawers, Chief of MI6, made a statement regarding the risk that the leaks and media exposure pose to intelligence:

I am not sure that the journalists who are managing this very sensitive information are particularly well placed, actually, to make those judgements. What I can tell you is that the leaks from Snowden have been very damaging. They have put our operations at risk. It is clear that our adversaries are rubbing their hands with glee.[7]

Sir David Omand, the former head of GCHQ expressed similar feelings when he claimed that “the leaks were the most ‘catastrophic loss to British intelligence ever.’” However, his views were dismissed by Lord Blencathra, the former Conservative Home Office minister, who said that the claim was “utter rubbish” and that comparisons with the leakers of secrets in the Cold War era were exaggerated: “The Cambridge spies were revealing information that could have brought down the whole British government, the western world, nuclear secrets, the whole shooting match. To try and paint Snowden into the same box as Philby, Burgess, Maclean, Blunt is just outrageous.”[8]

During the Cold War the West had a known enemy: Communism. It is not so simple anymore. Terrorists can come in all forms and from all backgrounds. In the age of internet how do we find and protect ourselves from terrorism? The intelligence services we have entrusted with the job seem to think that gathering mass amounts of data and fishing through it for hints of terrorism is the way to do it. If the media reveal and endanger these operations, then, this begs the question: do the media pose a danger to intelligence operations, and if so, what can be done about it?

The protection of the media through freedom of speech and press in the US Constitution’s first amendment and freedom of expression in the UK’s Human Rights Act may be letting them get away with too much. The Washington Post and The Guardian have both pointed out that the US Department of Justice may not make formal charges against Julian Assange because of a “’New York Times problem’—that is if they went after Assange they would also have to prosecute journalists from the New York Times, the Guardian and others who worked on the WikiLeaks revelations.”[9] Should the right to free speech and expression protect journalists who have leaked top secret state information, which could be detrimental to national security and intelligence operations?

Alan Rusbridger, the editor of The Guardian, faced questioning from the House of Commons select committee on home affairs on 3rd December 2013.[10] Conservative MP Julian Smith claimed that the editor could be prosecuted under section 58A of the Terrorism Act 2000, “Eliciting, publishing or communicating information about members of armed forces etc.” Subsection (1)(b) specifically states: “A person commits an offence who…publishes or communicates any such information.”[11] The media is in an uproar about this, claiming that it is their duty to expose possible government wrongdoing and cover-ups, especially when it concerns the population’s right to privacy. Rusbridger defended his actions, saying that: “A member of the Senate intelligence committee said to us: ‘I have been incredibly impressed by what you have done … I have seen nothing that you have done that has caused damage.’”[12] He also criticized the appearance of the head of British Intelligence in front of the UK’s ISC: “’If the three intelligence chiefs had previously faced anywhere near as rigorous cross-examination then perhaps we would not have been so dependent on the Guardian and other newspapers to learn just how out of control surveillance had become.’”[13] Questions have been raised on whether the ISC has enough oversight of British Intelligence because the members of the committee are appointed by the Prime Minister and come from intelligence, defence, or (necessarily) similar backgrounds.

If one examines Article 10, section 2 of the European Convention for the Protection of Human Rights and Fundamental Freedoms, then freedom of expression does not protect people who have leaked state secrets. The Convention states:

The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary.[14]

On this basis, Edward Snowden could be prosecuted for disclosing information about GCHQ and operation Tempora. This same Article could also apply to the media, including The Guardian and any other bodies who participated in leaking or publishing confidential security information.

Ben Emmerson, the UN special raporteur on counter-terrorism and human rights, has announced that he will be making an inquiry into the UK’s GCHQ and the US’s NSA. Emmerson defended Rusbridger and The Guardian, saying:

The astonishing suggestion that this sort of journalism can be equated with aiding and abetting terrorism needs to be scotched decisively. Attacking the Guardian is an attempt to do the bidding of the services themselves, by distracting attention from the real issues. It is the role of a free press to hold governments to account, and yet there have even been outrageous suggestions from some Conservative MPs that the Guardian should face a criminal investigation. [15]

An inquiry made by the European Parliament’s civil liberties committee has determined that the activities of the NSA and GCHQ appear to be illegal “and that their operations have ‘profoundly shaken’ the trust between countries that considered themselves allies.”[16] Cecilia Malmström, the European Commissioner for Home Affairs, said in her blog:

The anger and frustration that many of us Europeans are feeling about the alleged surveillance activities by the NSA, are feelings shared with many Americans. We had a long discussion about the reforms currently debated in Congress, something that Obama has expressed his support for. However, it is still not clear what implications these reforms will have for Europeans.  An important element in enhancing the confidence building in our relations would be to agree on a comprehensive data protection agreement. Our hope is that this framework, negotiated for several years now, can be presented next summer.[17]

It seems that from a European standpoint people are ready to move on and begin rebuilding diplomatic ties and negotiations. Chairman Elmar Brok from the European Parliamentary Committee on Foreign Affairs stated in a press release that the “EU and US need to find ways to restore their mutual trust so as to enable them to build a joint economic area under the Transatlantic Partnership agreement.”[18] Australian Defence Minister David Johnston commented on the Snowden leaks and stressed the importance of moving forward:

We are watching with great acuity what is happening in the space. But we must assume the worst…There is no alternative for us. And as I said to the Secretary of Defence and the Secretary of State, we have invested far too much in this space to allow this event, and it could happen to any one of the members of the five eyes [intelligence community], a criminal act, someone going bad…we’ve invested far too much to even contemplate a backward step.[19]

When former US Assistant Secretary of State Dr. Kurt Campbell was asked to comment on the Australian-Indonesian spying row, he said that Australia was collateral damage because of its close relation to US intelligence.[20] Australian Liberal senator David Fawcett defended the intelligence agencies during a debate, saying:

There is a balance and another side to every concept and, when it comes to human rights, I have to say the right to privacy, whilst important, must be held in balance, must be held in tension with the other rights that Australians expect and should deserve to have protected by their government.[21]

Fawcett also “suggested the ABC, because it was taxpayer-funded, should not have published top secret documents and pointed out the jail terms provided for in the Crimes Act for disseminating classified information.”[22]

In an attempt to move forward and leave the intelligence scandals in the past, President Obama “is likely to call for new protections for foreigners from US spying.”[23] However, Obama “is said to be convinced of the programme’s value.”[24] A group known as the Review Group on Intelligence and Communications Technologies suggested that the FBI should go before a court in order to secure private data records, and that the government should stop collecting bulk data.[25] In any case, groups from both sides of the argument are calling for some measure of reform in order to regain the public’s trust and to smooth over any disturbances these revelations have created internationally.

In this day and age, it is becoming more and more important to realize that people cannot simply say whatever they want about matters of national intelligence and security. If we want to remain protected by the agencies we pay for with taxes, we need to start taking responsibility for our own actions. If we want to be able to live in a world free of terrorism, we need to understand the concept of privacy may change slightly in order to accommodate innovations in communication technology. If that includes intelligence agencies searching through tons of information and communications on the internet to find evidence of terrorism, then so be it. At some point we need to trust in the system of checks that we have placed on those agencies to keep them from overstepping their boundaries, and let them do their jobs.

 



[1] For more info see: Ewen MacAskill, James Ball and Katharine Murphy, “Revealed: Australian spy agency offered to share data about ordinary citizens,” The Guardian, 2 Dec. 2013

[2] For more info see: Ewen MacAskill, “Australia’s spy agencies targeted Indonesian president’s mobile phone,” The Guardian, 18 Nov. 2013

[3] Philip Sherwell, “Barack Obama ‘approved tapping Angela Merkel’s phone 3 years ago,’” The Telegraph, 27 Oct. 2013

[4] “Obama ‘not told of Merkel phone bugging,’” BBC, 27 Oct. 2013

[5] “Uncorrected Transcript of Evidence given by Sir Iain Lobban, Mr Andrew Parker, and Sir John Sawers,” Intelligence and Security Committee of Parliament, 7th Nov. 2013, pp. 13 of 24, 

[6]For more info see: Ewen MacAskill, “GCHQ taps fibre-optic cables for secret access to world’s communications,” The Guardian, 21 June 2013

[7] “Uncorrected transcript of Evidence given by Sir Iain Lobban, Mr Andrew Parker, and Sir John Sawers,” Intelligence and Security Committee of Parliament, 7th Nov. 2013, pp. 18 of 24

[8] Rowena Mason and Nick Hopkins, “Conservative peer Lord Blencathra hits out at online spying by GCHQ,” The Guardian, 14 Oct. 2013

[9] Ed Pilkington, “Julian Assange lawyer calls on US to make formal decision on prosecution,” The Guardian, 26 Nov. 2013

[10] For more info see: Patrick Wintour, “MPs ask MI5 boss to justify claim that NSA leaks endangered national security,” The Guardian, 3 Dec. 2013

[12] Nick Hopkins and Matthew Taylor, “Guardian will not be intimidated over NSA leaks, Alan Rusbridger tells MPs,” The Guardian, 3 Dec. 2013

[13] See footnote 11

[14] “Article 10, section 2,” Convention for the Protecion of Human Rights and Fundamental Freedoms
as amended by Protocols No. 11 and No. 14,
http://conventions.coe.int/Treaty/en/Treaties/Html/005.htm

[15] For more info see: Ben Emmerson, “It’s outrageous to accuse the Guardian of aiding terrorism by publishing Snowden’s revelations,” The Guardian, 2 Dec. 2013

[16] Nick Hopkins and Ian Traynor, “NSA and GCHQ activities appear illegal, says EU parliamentary inquiry,” The Guardian, 9 Jan. 2014

[17] Cecilia Malmström, “Ministerial meeting in Washington,”19th Nov. 2013, http://blogs.ec.europa.eu/malmstrom/ministerial-meeting-in-washington/

[18] “EU and US must restore trust to help trade talks, says MEPS and US congressmen,” press release, EU committee on foreign affairs, 27 Nov. 2013

[19] Jonathan Swan, “Snowden spy leaks: worst yet to come says Defence Minister David Johnston,” The Sydney Morning Herald, 3 Dec. 2013

[20] “Dr Kurt Campbell on the Australian-Indonesian spying row,” Lowy Institute for International Policy, 21 Nov. 2013

[21] Lenore Taylor, “Senate debate heats up on issue of individual’s right to privacy,” The Guardian, 5 Dec. 2013

[22] See footnote 21

[23] Raf Sanchez, “Barack Obama to announce reforms to US surveillance revealed by Edward Snowden,” The Telegraph, 17 Jan. 2014

[24] See footnote 23

[25] See footnote 23