The new court ruling on mass surveillance highlights the need for protection for journalists and whistleblowers
Last month, the European Court of Human Rights ruled that the GCHQ mass interception and collection of data is illegal. And eight months before, in September 2020, the US courts ruled that the mass interception and collection of data is illegal after NSA officials were caught lying about the nature of the program. It was a landmark ruling. It was an enormous win for the public and a colossal blow for intelligence agencies.
As the original revelation happened eight years ago, here is a recap.
In July 2013, Edward Snowden, a 29-year-old man working as a private contractor for the National Security Agency (NSA), downloaded over 10,000 classified documents and fled to Hong Kong, where he met with Laura Poitras (an independent Filmmaker) and two senior Guardian journalists, Ewen MacAskill and Glenn Greenwald. Snowden showed the trio highly classified, highly technical NSA documents, showing, in detail, the vast surveillance programs. Soon after, on the 6th of June 2013, The Guardian published the first article, which showed that the NSA has a secret court order to collect millions of American telephone records. The scandal widened when The Washington Post joined The Guardian and started publishing more classified documents showing the vast power the intelligence agencies possess.
These articles revealed that the intelligence agencies from United States, United Kingdom, Canada, Australia, and New Zealand — also called “The Five Eye Club” — have numerous jointly operated surveillance programs, and they were spying on all their citizens, and citizens of other nations, without warrants. These programs were called PRISM, XKeyScore, DishFire and Tempora. These programs gave these intelligence agencies the power to intercept hundreds of millions of phone calls, SMS messages and metadata a day, which allowed them to build an accurate portrayal of who an individual is and their location. They also gathered mass data from tech giants like Facebook, Google, Microsoft, Apple, and Yahoo, where the intelligence agencies monitored emails, private messages, and search histories. Out of all the agencies, the leaks revealed that GCHQ was the intelligence superpower. Edwards Snowden himself has said that the GCHQ is worse than the US intelligence agencies when it comes to spying on individuals. The files showed GCHQ could collect more than 600 million communications a day by tapping into 200 fibre-optic cables. And GCHQ gave 850,000 NSA employees and its private contractors' access to top-secret GCHQ databases.
However, it is not only the citizens that were victims of mass surveillance. World leaders and politicians were also victims. The Guardian reported that the NSA “bugged” EU politicians' phone calls and spied on G20’s foreign leaders. The biggest case was Angela Merkel, where the NSA wire-tapped her private mobile phone.
All this revelation, of course, caused an immense public outcry and many public hearings. Citizens were now fully aware of their governments’ surveillance program, which lead way for more use of end-to-end encryption on communication platforms. And after many public hearings, reforms were passed in 2015 in the US and 2016 in the UK, scaling back the surveillance programs.
And recently, the U.S and EU courts have ruled that the surveillance programs were illegal.
It all seems simple and easy for the newspapers and the whistleblower for exposing illegal practices by the government. However, this is not the case as it highlights the difficulties the press and the whistleblowers face when reporting on national security leaks.
In 2013, in the wake of the publications of the articles, The US and the British Government acted differently in the way they handled the press and the journalists.
The Guardian was the first to publish the articles, and they were met with anger and fury by GCHQ and the British government. During the interview for this article, Ewen MacAskill, the Guardian Journalist who met and saw the classified documents, said they “were devastated, alarmed, furious over the leaks, and we were put under surveillance. As a result, The Guardian journalists used hidden codes in phone calls to contact each other. MacAskill said that one of them was “this is your friend from London who supports Wolves (Wolverhampton Wanderers Football Club). Is everything OK at your end”.
MacAskill said every time he entered London, he was stopped and pulled aside by passport control because his passport had been “flagged”, and he was kept for “10 hours in detention without a proper reason”. However, MacAskill said he did not have this issue with the US government. “I was worried about going to New York, but the Americans never hassled me or other journalists working on the story. I thought they might call me in front of a Grand Jury, but that never happened. The only hassle I got was from the British government.”
Because The Guardian did not stop publishing the leaks, GCHQ raided their office and demanded that they destroy all their computers containing the classified documents in front of the officers. McCaskill said, “They wanted to make an example of us. They wanted us prosecuted, and they wanted The Guardian shut down. It was a terrible thing they did. What message does it send about press freedom in Britain?”.
MacAskill revealed that the Counter-Terrorism Police also launched an investigation into The Guardian, and they were treated like if they were “terrorists”. The investigation is called Operation CURBLE, and it was open for six years, and it was only shelved two years ago. Ewen cautioned that just because the police “shelved it” does not mean they “closed it” and that the operation is “still hanging there”.
MacAskill voiced his concern about press freedom and said, “the freedom of the press does not exist in Britain”. He said that Alan Rusbridger knew that the British government was going to retaliate, and they will pursue an injunction to be placed on The Guardian to stop the publishing of the articles. So, they moved all their reporting to their New York City office, where they would be safe, and the FBI nor the NYPD would raid their office.
In the end, publishing the leaks changed the world as we know it. The Guardian and their journalists won the Pulitzer Prize for their fearless reporting, and Laura won an Oscar for her Snowden documentary CitizenFour.
However, the whistleblowers are always the one who deals with the consequences. MacAskill said even though there is whistleblower protection for certain government and private agencies, there is no protection for whistleblower if it falls under national security. And this is what happened to Snowden. He was charged under the Espionage Act, and he is still in exile in Moscow to this day. If he is extradited to the US, he will spend many decades in a high-security prison.
Yet, these kinds of degrading treatments of the press and whistleblowers have been happening for decades. In 1979, Daniel Ellsberg, a military analyst for the U.S Department of Defence (DoD), wanted Americans to know that their government was lying to them about the Vietnam war, so he leaked it to the New York Times, which later published the articles.
The Nixon administration was furious and took the newspaper to court. The case ended up at the Supreme Court with the judge’s ruling in favour of the NY Times. It was a historic ruling that upheld the First Amendment and gave protection to journalists and the press. (This was the reason why Alan Rusbridger moved The Guardian reporting to the US, where they will be fully protected from any interference from the government). However, the ruling did not extend to give any protection to the whistleblowers, and Ellsberg was charged under the Espionage Act of 1917. But the charges were dismissed after it was discovered that President Nixon illegally ordered federal agents to break into Ellsberg’s and his psychiatrist’s office to dig up any information to discredit him.
And fast forward to 2010, Chelsea Manning, a United States Army soldier, leaked highly sensitive materials. One of the materials is a video showing war crimes committed by the US Air Force during the Iraq War in 2007, which the US DoD covered up. The video showed the US Air Force crew lying about an encounter with Islamic militants, launching missiles at them and then laughing at the dead casualties. It was later revealed they were innocent civilians, and two of them were Reuters reporters. Instead of prosecuting the US Army Force officers for murder, the US government went after Manning for leaking the sensitive material, and she was charged and convicted under the Espionage Act. Manning was sentenced to 35 years, which was later commuted to 7 years by President Obama. However, while serving her sentence, she was subject to torture and abuse in the US prison cell because she refused to testify against Wikileaks and Julian Assange.
There are clearly two separate laws for the government and its citizens. The government is allowed to conduct illegal operations, but if anyone exposes those illegal operations, they are treated as the enemy of the state and will face prosecution.
This is the reason why there needs to be robust protection for journalists in the UK and why there is a need for serious protection for the whistleblower in both the US and the UK. If not, how are we supposed to hold the government to account? In a free and democratic society, the press and whistleblowers must hold the government to account without any threats from the government. That way, a proper power balance can be established, and journalists can keep the government power in check.
With that said, it is important to know that there is more freedom of the press in the U.K and the U.S than in nations like Iran, Saudi Arabia, Russia, and Venezuela, where journalists and whistleblowers are jailed, tortured or worse, executed for exposing even minor government corruption. But that does not mean we should look the other way. We should be setting a standard for the rest of the world.
