Surveillance and Free Media

It goes without saying that the new media makes information access and dissemination far easier but it also can make it easier to monitor who is saying what and who is reading it. The Internet opens a window to the world but that window lets to world look in also. So who is affected why is it important? There are three affected groups: journalists and publishers, sources, and readers. This is an area where free speech and privacy go hand in hand and complement each other. There is a chilling effect on journalists, sources and readers when their activities are put under surveillance. The surveillance scares sources from being able to communicate information with journalists or journalists who for one reason or another need to post anonymously. Readers, who wish to enforce their basic human right “to seek information” are scared away when they know Big-Brother or Big Mama is watching them. There are real consequences, as the many bloggers in jail in China and elsewhere know. There has been a global trend towards increasing surveillance, both technically and legally. The laws and policies that once limited surveillance have been weakened or ignored. Since the Sept.11 terrorist attacks there have been many new laws adopted to allow surveillance of communications in the name of the war on terror. Often these are part of larger anti-terrorism laws that have profound effects on freedom of expression. In Sweden, the new Conservative government has proposed authorizing the Defense Ministry to intercept all international communications in or out of the country. In the United States, the National Security Agency has been caught illegally spying on international communications and obtaining phone records. In Bangladesh, the government has proposed that mobile phone companies record all phone calls.

Journalists are often the subject of these easier taps. Journalists across Europe have been subjected to surveillance and searches to identify their sources. In the Netherlands, an appeals court recently authorized surveillance of journalists in a controversial case of leaked “state secrets” that revealed how incompetent the intelligence service was. In Germany, the government has apologized for conducting surveillance on journalists for more than ten years. In Latvia, the police and judge who authorized wiretapping of a journalist have been sanctioned, and the journalist was recently awarded more than U.S. $40,000 in compensation.

There has been a second line of attack where many countries have introduced laws that “update” national wiretapping laws to mandate built-in surveillance, such as the U.S. Communications Assistance for Law Enforcement Act, the U.K. Regulation of Investigatory Powers Act, and the Interception of Communications Bill in Zimbabwe.

The United States has been leading a campaignfor world-wide adoption of these requirements through international organizations such as the G-8, the International Telecommunication Union and the Council of Europe, which adopted a cyber-crime convention incorporating these into international law for the first time. The requirements make it easier for anyone to be able to conduct wiretapping. In Greece, it was discovered that the Vodafone mobile phone network had been hacked and built-in surveillance technologies were used to monitor the communications of the Prime Minister and other officials and prominent persons, including journalists. In Italy, dozens were arrested recently after large-scale illegal wiretapping and blackmail of officials and businessman was revealed. In addition to the laws making wiretapping easier, many countries are also adopting laws to facilitate surveillance in new ways. For example, they are considering legislation requiring telecommunications providers automatically to collect all information on their users’ activities including web sites visited, e-mails, instant messages, and mobile use, including the location of phones when used.

The European Union adopted a legal rule on data retention in 2006. It requires that companies keep user information for between six months and two years. It goes into effect in September 2007, and, by March 2009, all EU countries must have capacity to retain data on Internet access, telephony and e-mail.

Some countries, like Poland, are demanding the right to keep the information for 15 years. In the United States, there is no current law on data retention. President Bush personally pushed the EU to adopt its directive. A bill was recently introduced in the United States, but the new Democratic majority in Congress is less likely to adopt it.

This transactional data can be very important in identifying journalists’ activities. Yahoo! China provided a reporter’s information to the government which resulted in his being sentenced to a 10 year prison term. In the United States, an appeals court has agreed that the government may obtain New York Times phone records to see who its sources are. Companies including Hewlett-Packard, Wal-Mart and Sonora have been found to be obtaining employee and journalists’ phone records to identify sources. There is also a growing number of countries adopting laws to require tracking of the activities of cyber cafe users. These often require that users show identification, and logs must be kept of their activities. In Tibet, users must obtain an “Internet Browsing Registration Card” before they may surf the Net at cyber-cafes or at home. Belarus adopted a law in February 2007 that requires that cafe owners must report users who look at illegal web sites. A number of countries, including Japan and China, have also been adopting “Real Names laws” requiring users to register before they can post on web sites.

Not all recent trends are negative. Many nations have adopted laws on protection of confidential media sources. The laws limit the ability of governments to find out who has provided information of public interest to journalists. A project Privacy International is currently working on for the Open Society Institute found that more than 70 countries have adopted such laws, and important institutions, including the UN, Organisation of American States and the Council of Europe have all recognised their importance. As controversy grows over illegal surveillance, searches and imprisonments, more countries are adopting such laws or strengthening them.

Important questions arise in relation to the new media -- how well do such laws limiting government interference apply? Unfortunately, most of the time, they only apply to limited categories of media. They are specific to broadcasting or television or print and are silent on other types of media. Internet journalists are often not included. Even Council of Europe guidelines say they only protects persons “regularly or professionally engaged in the collection and dissemination of information to the public.” But as the Internet is more recognized as a form of news media, application of those laws should be extended. In Belgium, the national law was recently amended to cover more broadly persons involved in media, following a court decision that found that the law was too narrow. In California, a court found that the local law does include Internet journalists.Questions about bloggers and others remain. Blogger Josh Wolf has been in jail for longer that any other American journalist in recent history. Another protection for sources is whistle-blowing laws. Only a few countries have adopted comprehensive laws -- including the United Kingdom, United States, South Africa, Japan and, most recently, Ghana. Their usefulness has proved to be limited in practice.

Pervasive surveillance is becoming commonplace in the name of fighting terrorism and crime. This will have profound effects on the abilities of the media to continue to access and provide information. Current laws are being rewritten with little or no consideration to the effects on free speech. Increased efforts are needed to resist these laws and to promote laws and rules to protect the free expression rights of media and the public.