Some reporters regard recorders and cameras as intrusive devices that all but ensure that interviewees will be uncooperative. To others, they are invaluable newsgathering tools that create important documentary evidence of a conversation.
News organizations frequently adopt policies regarding surreptitious use of these newsgathering tools. It is critical that reporters and news organizations know the state and federal laws that govern the use of cameras and recording devices. The summary that follows is intended as an introduction to those laws.
You may record, film, broadcast or amplify any conversation if all parties to the conversation consent. It is always legal to record or film a face-to-face interview when your recorder or camera is in plain view. In these instances, the consent of all parties is presumed.
Of the 50 states, 38, as well as the District of Columbia, allow you to record a conversation to which you are a party without informing the other parties you are doing so. Federal wiretap statutes also permit this so-called one-party-consent recording of telephone conversations in most circumstances.1 Twelve states forbid the recording of private conversations without the consent of all parties. Those states are California, Connecticut, Florida, Illinois, Maryland, Massachusetts, Michigan, Montana, Nevada, New Hampshire, Pennsylvania and Washington.2
The Federal Wiretap law, passed in 1968, permits surreptitious recording of conversations when one party consents, “unless such communication is intercepted for the purpose of committing any criminal or tortious act in violation of the Constitution or laws of the United States or of any State.” Amendments signed into law in 1986 and 1994 expand the prohibitions to unauthorized interception of most forms of electronic communications, including satellite transmissions, cellular phone conversations, computer data transmissions and cordless phone conversations.
Most states have copied the federal law. Some expand on the federal law’s language and prohibit all surreptitious recording or filming without the consent of all parties. Some state statutes go even further, prohibiting unauthorized filming, observing and broadcasting in addition to recording and eavesdropping, and prescribing additional penalties for divulging or using unlawfully acquired information, and for trespassing to acquire it. In most states, the laws allow for civil as well as criminal liability.
Many of the state statutes make possession of wiretapping devices a crime even though one-party consent to taping conversations may be allowed.
Most of the state statutes permit the recording of speeches and conversations that take place where the parties may reasonably expect to be recorded. Most statutes also exempt from their coverage law enforcement agencies and public utilities that monitor conversations and phone lines in the course of their businesses.
In general, state statutes apply to conversations that take place within a single state.
When the conversation is between parties in states with conflicting eavesdropping and wiretapping laws, federal law generally applies, although either state also may choose to enforce its laws against a violator.
If a reporter in a state that allows one-party-consent recording calls a party in a state that requires two-party consent, and records the conversation surreptitiously — which is legal under federal law — a state with tough laws prohibiting unauthorized recording may choose to apply its laws regardless of the location of the caller or the existence of the federal statute. It is important to know your state law and the law in the state into which you call before you record surreptitiously.
The federal law and many state laws make it illegal to possess — and particularly to publish — the contents of an illegal wiretap. Some states that allow recordings make the distribution or publication of those otherwise legal recordings a crime. The U.S. Supreme Court ruled in Bartnicki v. Vopper in May 2001 that the media could not be held liable for damages under the federal statute for publishing or broadcasting information that the media obtained from a source who had conducted an illegal wiretap. The recording related to a local union leader’s proposal to conduct violent acts in the area.
The Court ruled that any claim of privacy in the recorded information was outweighed by the public’s interest in a matter of serious public concern.3 The Court did not indicate whether disclosure by the media under different circumstances would be legal.
The Federal Communications Commission also has adopted a policy, known as the “Telephone Rule,”4 which requires a reporter who records a telephone conversation that will later be broadcast to inform the other party that the recording is intended for broadcast.
State hidden camera statutes
The laws of 13 states expressly prohibit the unauthorized installation or use of cameras in private places. In Alabama, Arkansas, California, Delaware, Georgia, Hawaii, Kansas, Maine, Michigan, Minnesota, New Hampshire, South Dakota and Utah, installation or use of any device for photographing, observing or overhearing events or sounds in a private place without the permission of the people photographed or observed is against the law. A private place is one where a person may reasonably expect to be safe from unauthorized surveillance.5
Alabama, Delaware, Georgia, Hawaii, Kansas, Maine, Michigan, Minnesota, South Dakota and Utah also prohibit trespassing on private property to conduct surveillance of people there. In most of these states, unauthorized installation or use of a hidden camera, or trespassing to install or use one, is a misdemeanor, punishable by a fine. In Maine, the privacy violation is a felony. In Michigan, unauthorized installation or use of a hidden camera is a felony, punishable by a $2,000 fine and up to two years in prison.6
Several states have laws prohibiting the use of hidden cameras only in certain circumstances, such as in locker rooms or restrooms, or for the purpose of viewing a person in a state of partial or full nudity.7
In 2005 The New York Times disclosed that technical glitches resulted in some of the intercepts including communications which were “purely domestic” in nature, igniting the NSA warrantless surveillance controversy. Later works, such as James Bamford‘s The Shadow Factory, describe how the nature of the domestic surveillance was much, much more widespread than initially disclosed. In a 2011 New Yorker article, former NSA employee Bill Binney said that his colleagues told him that the NSA had begun storing billing and phone records from “everyone in the country.”
The program was named the Terrorist Surveillance Program by the George W. Bush administration in response to the NSA warrantless surveillance controversy following disclosure of the program. This program operated without the judicial oversight mandated by Foreign Intelligence Surveillance Act (FISA). Because the technical specifics of the program have not been disclosed, it is unclear if the program is subject to FISA. It is unknown if this is the original name of the program; the term was first used publicly by President Bush in a speech on January 23, 2006.
On June 6, 2013, it was revealed that the Terrorist Surveillance Program was replaced by a new NSA program, referred to by its codeword, PRISM.
A classified PowerPoint presentation leaked by Edward Snowden states that PRISM enables “collection directly from the servers” of Microsoft, Yahoo, AT&T, Verizon, Google, Facebook and other online companies.
The Times says that major tech companies have systems that “involve access to data under individual FISA requests. And in some cases, the data is transmitted to the government electronically, using a company’s servers.”
Data is “shared after company lawyers have reviewed the FISA request according to company practice. It is not sent automatically or in bulk,” the Times reports. The scheme is “a more secure and efficient way to hand over the data.”
Federal Judge Orders End to Warrantless Wiretapping
On August 17, 2006, U.S. District Judge Anna Diggs Taylor found that President Bush exceeded his proper authority and that the eavesdropping without warrants violated the First and Fourth Amendment protections of free speech and privacy.
“It was never the intent of the Framers to give the president such unfettered control, particularly where his actions blatantly disregard the parameters clearly enumerated in the Bill of Rights,”she wrote, in a decision that the White House and Justice Department said they would fight to overturn.
On January 17, 2007, Attorney General Alberto Gonzales informed U.S. Senate leaders by letter that the program would not be reauthorized by the president, but would be “subjected to judicial oversight.” “Any electronic surveillance that was occurring as part of the Terrorist Surveillance Program will now be conducted subject to the approval of the Foreign Intelligence Surveillance Court,”according to his letter.
Obama Administration Renews NSA Spy Program
Nine months after promising to overhaul the nation’s spy program, President Barack Obama’s deadline to make such changes has been extended for the third time.
According to National Journal, the Foreign Intelligence Surveillance Court approved a request from the Justice Department to renew the NSA’s Section 215 telephony metadata program, part of the Patriot Act. The program allows the NSA to spy on American citizens by collecting phone records.
The top-secret program was first made public by former NSA contractor Edward Snowden, whose revelations forced him to take asylum in Russia.
Machinery for tyranny
In a January speech, Obama promised immediate action that would “scale back” the program. He also said the government would not hold onto the phone records of private Americans it had already been collecting, and that judicial finding would be required before a search is made in the data.
Obama – “I guarantee that as your president that my administration will be open and crystal clear for every American to see”………with some caveats……..
The program, however, was renewed 90 days later after the administration failed to come up with a new plan. The same thing was done 90 days after that. The ruling means the government’s practice of collecting call information will press on. Phone numbers and the start and end times of phone calls are being collected under the program.
Vermont Democrat Patrick Leahy, who serves as the Senate Judiciary Committee Chairman, introduced a bill that would end the NSA’s practice of metadata collection. The proposed law would also force changes to the Foreign Intelligence Surveillance Court, which oversees the NSA’s activities.
“Congress must ensure that this is the last time the government requests and the court approves the bulk collection of Americans’ records,” Leahy said. “This announcement underscores, once again, that it is time for Congress to enact meaningful reforms to protect individual privacy.”
The public is concerned that the NSA “had been collecting and storing enormous amounts of information about American citizens,” he said. “The data collection at issue was not limited to those suspected of terrorist activity.” Leahy criticized opponents of the bill for using “scare tactics” to defeat the legislation. He promised to keep fighting for NSA reforms.
US Senate fails to move forward on NSA Reform Bill
The U.S. Senate has voted against a bill that would rein in the National Security Agency’s bulk collection of telephone records within the country, possibly killing any NSA reforms. Supporters of the USA Freedom Act, in a Senate vote, failed to get the 60 votes needed to end debate and move toward a final vote on the legislation. Fifty-eight senators voted to end debate, while 42 voted against it.
While supporters said the legislation is needed to “restore public trust” in U.S. intelligence services, opponents said the NSA’s widespread collection of U.S. phone records is needed to keep the country “safe from terrorism.” The Senate bill had required the NSA to use specific targeting terms when collecting U.S. telephone records, and would require the government to issue reports on the number of people targeted in surveillance programs. It would give communications providers options for how to report the number of surveillance requests they receive, and require the U.S. Foreign Intelligence Surveillance Court to appoint a panel of advocates to argue in support of individual privacy and civil liberties during consideration of surveillance requests.
FISA Court Order Extending NSA Surveillance Operations
On Dec. 8, 2014, the Director of National Intelligence (DNI) declassified and disclosed publicly that the U.S. government had filed an application with the Foreign Intelligence Surveillance Court seeking renewal of the authority to collect telephony metadata in bulk, and that the FISC renewed that authority.
The FISC Primary Order renewing the collection expires on February 27, 2015.The DNI also announced that the Administration was undertaking a declassification of the December 4, 2014, Primary Order. Following this declassification review by the Executive Branch, the DNI has declassified and released in redacted form the December 4, 2014, Primary Order, signed by Judge Michael W. Mosman.
DIRECTOR OF NATIONAL INTELLIGENCE
WASHINGTON, DC 20511
December 8, 2014
Joint Statement from the Office of the Director of National Intelligence
and the Office of the Attorney General on the Declassification of Renewal of Collection Under Section 501 of the Foreign Intelligence Surveillance Act
Earlier this year in a speech at the Department of Justice, President Obama announced a transition that would end the Section 215 bulk telephony metadata program as it previously existed, and that the government would establish a mechanism that preserves the capabilities we need without the government holding this bulk data. As a first step in that transition, the President directed the Attorney General to work with the Foreign Intelligence Surveillance Court to ensure that, absent a true emergency, telephony metadata can only be queried after a judicial finding that there is a reasonable, articulable suspicion that the selection term is associated with an approved international terrorist organization.
The President also directed that the query results must be limited to metadata within two hops of the selection term instead of three. These two changes have been in effect since February 2014.
In addition, the President also directed the Intelligence Community and the Attorney General to develop options for a new approach to match the capabilities and fill gaps that the Section 215 program was designed to address without the government holding this metadata. After carefully considering the available options, the President announced in March that the best path forward is that the government should not hold this data in bulk, and that the data should remain at the telephone companies with a legal mechanism in place that would allow the government to obtain data pursuant to individual orders from the FISC approving the use of specific numbers for such queries. The President also noted that legislation would be required to implement this option, and he has called on Congress to enact this important change.
The Administration welcomes the opportunity to work with the new Congress to implement the changes the President has called for. Given that legislation has not yet been enacted, and given the importance of maintaining the capabilities of the telephony metadata program, the government has sought a 90-day reauthorization of the existing program, as modified by the changes the President directed in January.
Consistent with prior declassification decisions and in light of the significant and continuing public interest in the telephony metadata collection program, DNI James R. Clapper declassified the fact that the government filed an application with the FISC to reauthorize the existing program for 90 days, and that the FISC issued an order approving the government’s application. The order issued on December 4, 2014, expires on February 27, 2015. The Administration is undertaking a declassification review of this most recent court order, and when complete, the ODNI will post the document to its website and icontherecord.tumblr.com.
Criticism of the War on Terror addresses the morals, ethics, efficiency, economics, as well as other issues surrounding the War on Terror. It also touches upon criticism against the phrase itself, which was branded as a misnomer. The notion of a “war” against “terrorism” has proven highly contentious, with critics charging that participating governments exploited it to pursue long-standing policy/military objectives, reduce civil liberties, and infringe upon human rights. It is argued that the term war is not appropriate in this context (as in War on Drugs), since there is no identifiable enemy and that it is unlikely international terrorism can be brought to an end by military means.
Other critics, such as Francis Fukuyama, note that “terrorism” is not an enemy, but a tactic: calling it a “war on terror” obscures differences between conflicts such as anti-occupation insurgents and international mujahideen. With a military presence in Iraq and Afghanistan and its associated collateral damage Shirley Williams maintains this increases resentment and terrorist threats against the West. Other criticism include United States hypocrisy, media induced hysteria, and that changes in American foreign and security policy have shifted world opinion against the US.
Please do not read this article without acknowledging our First Amendment right under the U.S. Constitution.
Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.
The reason this article started off with the First Amendment to the constitution is because it would appear that we must now assert our constitutional rights before we’re entitled to them – according to the California Supreme Court.
In a bizarre and preposterous ruling, People v. Tom – California Courts, the first of its kind that we know of in the nation, you don’t have the right to remain silent before being informed of those rights.
If you are silent before being informed of your Miranda Rights the state has a right to assume and argue that your silence proves your guilt, so said the California Supreme Court in a controversial 4-3 ruling.
In short, your federalConstitutionFifth Amendment right against self incrimination, your fundamental right to remain silent has been nullified in the golden state.
The court actually ruled that a criminal defendant’s silence after the event for which he was charged with a crime was properly used against him in court to prove his guilt, and only afterthe cops arrested and then advised the defendant that he had a right to remain silent did he begin to enjoy the right without his silence being used against him as proof of his guilt.
This begs the questions:
Why is it ever necessary at all to advise the accused of the right to remain silent if he is already aware of it, exercising it, and remaining silent? Why should that right be a nullity until the cops formally advise of it? Why is there no right to remain silent before being advised of the right? Why isn’t the right always operative?
The fact is that suspects are usually not aware of their rights. That’s why the U.S. Supreme Court in Miranda v. Arizona ruled decades ago that police must advise of the right before questioning the suspect.
Ignorance is no excuse!
You as a citizen are expected to know all of the 29 Codes that consist of California law.
You are also now required to get intimate with your constitutional protections and,your constitutional rights appear to have no validity unless you assert them. You as a citizen are only entitled to your right to remain silent when you assert them by informing law enforcement that you have the right to remain silentbefore they read you your Miranda rights.
Much like your right to remain silent,you probably wont be entitled to protections against unreasonable or warrantless search eitherunless you assert those rights before the search commences.You probably wont enjoy freedom of speech protections and the media wouldn’t enjoy freedom of the press either unless they start out every article by citing the first amendment much like this article started out with asserting the rights under the first amendment.
“The court today holds, against common sense expectations, that remaining silent after being placed under arrest is not enough to exercise one’s right to remain silent,” said Justice Goodwin Liu.
Government documents obtained by the ACLU show that nationwide programs that collect so-called “Suspicious Activity Reports” provide inadequate privacy safeguards and guidance on the definition of “suspicious activity,” leading to violations of Americans’ First Amendment and privacy rights, and to racial and religious profiling.
In August 2011, the ACLU filed ACLU v. FBI, a lawsuit to enforce a Freedom of Information Act (FOIA) request for records about the FBI eGuardian program, a nationwide system of collecting and sharing so-called “suspicious activity reports” (“SARs”) from the public and law enforcement and intelligence officials across the country. The Department of Justice (DOJ) and National Security Agency (NSA) initially failed to release any records, and DOJ insisted it had no independent obligation to even search for information because eGuardian is run by the FBI. Although the FBI partially released a handful of records, they represented only a fraction of the FBI’s records about this nationwide program.
Through litigation, however, the ACLU secured additional agency searches for eGuardian records. As a result, DOJ identified 13,500 pages of records requiring review. Ultimately, between January 2012 and July 2013, the FBI, DOJ, NSA, and Office of the Director of National Intelligence released in full or in part over 1,900 pages of records to the ACLU, and in August 2013 identified hundreds of additional eGuardian recordsthese agencies sought to keep secret under exemptions to the FOIA.
Documents Reveal Inadequate Privacy Safeguards and Lack of Guidance Over Use of Suspicious Activity Reporting Systems
The documents obtained by the ACLU further confirm that the Nationwide Suspicious Activity Reporting Initiative, eGuardian, and the Information Sharing Environment Suspicious Activity Reporting Shared Spaces use vague and expansive definitions for “suspicious activity” that have caused persistent confusion among federal, state, and local law enforcement. This confusion underscores the ACLU’s concern — shared by some state police departments — that Suspicious Activity Reports will be based on racial or religious profiling or the exercise of First Amendment rights, rather than evidence of wrongdoing.
For example, in 2009, the Boston Police Department “recommended that the appropriate threshold be clearly defined for entering a SAR into the ISE-SAR Shared Spaces,” cautioned against “the entry of information . . . that is not of value,” and emphasized the need to “avoid large volumes of information being ‘dumped’ into the system.” The Miami-Dade Police Department warned that “the NSI needs to stay focused on behaviors and not individuals,” suggesting that problems with guidance on what constitutes “suspicious activity” would result in inappropriate profiling. Such confusion over the definition of “suspicious activity” is hardly surprising in light of the government’s failure to make clear that 28 C.F.R. Part 23 — a regulation long applied to criminal intelligence information to safeguard privacy, civil rights and civil liberties — applies to nationwide suspicious activity reporting programs, requiring “reasonable suspicion” of criminal activity to justify the collection, retention and dissemination of Suspicious Activity Reports about innocent people.
The documents obtained by the ACLU thus heighten concerns previously expressed by the ACLU and others that eGuardian, the Information Sharing Environment, and the broader Nationwide Suspicious Activity Reporting Initiative have opened the door to violations of civil rights and civil liberties across the country. The ACLU of California recently obtained summaries of SARs produced by California fusion centers that vindicate these concerns, showing that Suspicious Activity Reports contained no reasonable evidence of criminal activity but were primarily justified based on bias against racial and religious minorities and the exercise of First Amendment rights. Based on the reports obtained thus far, photography and videography are frequently reported without additional facts, rendering these constitutionally-protected activities inherently suspicious.
Additional information from specific documents follows the recommendations below.
The increasingly widespread use of eGuardian, as revealed by the documents, only underscores the serious need for reform. In 2010, the Department of Defense announced that it would participate in the Nationwide Suspicious Activity Reporting Initiative through eGuardian. “As of February 2010, there were more than 560 Federal, state, local, and tribal member agencies with more than 1,800 individual eGuardian users who had reported and shared almost 3,000 incidents.” Just six months later, the number of Suspicious Activity Reports in eGuardian had jumped to 5,176. And press reports indicate that by December 2010, some 890 state and local agencies had submitted 7,197 reports for inclusion in eGuardian.
The ACLU “urges each of the federal agencies” involved — the Department of Justice, Federal Bureau of Investigation, Department of Homeland Security, Office of the Director of National Intelligence, National Security Agency, and the Department of Defense — to make public the policy and guideline documents governing nationwide suspicious activity reporting programs, including the Nationwide Suspicious Activity Reporting Initiative, eGuardian, and the Information Sharing Environment (ISE) – Suspicious Activity Reporting Shared Spaces, and to reform these programs to:
Require reasonable suspicion of specified criminal activity in order to collect, retain or disseminate SARs containing personally identifiable information, as required by federal regulation 28 CFR Part 23;
Clearly and unequivocally prohibit the collection, retention, or dissemination of information about the First Amendment-protected political, religious or social views, associations, or activities of any individual or any group, association, corporation, business, partnership, or other organization unless that information directly relates to criminal activity and there is reasonable suspicion that the subject of the information is or may be involved in criminal activity;
Remove photography and other activities clearly protected by the First Amendment from inclusion in lists of categories of suspicious activity or other guidance criteria to prevent the unlawful stops, detention, and harassment of photographers; videographers, and journalists;
Give agencies contributing Suspicious Activity Reports continuing control over the information in the federal suspicious activity reporting systems to modify, correct, update, and purge data according to state and local laws, regulations, and policies; and
Require routine review and re-examination of stored Suspicious Activity Reports to purge any information that is misleading, obsolete, or otherwise unreliable; and require that all Suspicious Activity Reports be purged from all data systems “within five years” and that all recipient agencies by advised of such changes which involve errors or corrections. No data not leading to an investigation should remain in a suspicious activity reporting system or any other federal database for more than five years. [Why so long?]
A group called The American Muslim Political Action Committee (AMPAC) is planning a one million Muslims march to Washington D.C. on September 11th. The timing of the group’s march is seen by many as tasteless considering it is scheduled for the anniversary of the worst domestic massacre in American history perpetrated in the name of Islam. AMPAC ups the tasteless quotient by issuing “demands” for the American government:
We at AMPAC (American Political Action Committee) are planning an historic event for 9.11.13 where one million Muslims will march to Washington D.C. and demand that our civil rights be protected by our government.
We are demanding that laws be enacted protecting our First Amendment. We are asking President Obama to fulfill his promise from his first campaign for Presidency of a transparent government. Lastly we are asking for the release of the 9/11 Commission report to the American people.
The group seems to rationalize the date chosen for their march by claiming that the media has been lying to the American people with regard to the role Islam played in the 9/11 attacks:
On 9.11.01 our country was forever changed by the horrific events in New York. The entire country was victimized by the acts done on that day. Muslim and Non Muslim alike were traumatized but we as Muslims continue 12 years later to be victimized by being made the villains. To this day every media outlet and anti Islamic organization has committed slanderous and libel statements against us as Muslims and our religion of Islam.
Yet our Government either sits idly by and does nothing to protect our freedoms or it exacerbates the problem with its constant war on terrorism in Islamic countries, congressional hearings on Islam in America, and its changes to the NDAAlaw.
These lies told to the American population has made it impossible for us to do true Dawa. Why do we have to defend our religion while doing Dawa? Why can’t we just share the perfection of the Quran and the beauty of our beloved Prophet Muhammad?
Dawameans “invitation” or “call to Islam.” It is often translated to mean “Islamic Mission,” although, both in theory and in practice, dawa is different in its aims and methods from, for example, the contemporary Christian comprehension of a religious mission. Many Islamic thinkers strongly emphasize this difference.Especially for those thinkers that adhere to the broad-based Salafist ideology typical of the Muslim Brotherhood and related revivalist groups, dawa isn’t simply a method for spreading a spiritual teaching or performing charitable works; it is also an inherently political activity, whose principal aim is Islamic reform and revival leading to the eventual establishment of an Islamic state.
The brief argues that theNational Security Agency’s phone records collection program could “allow identification of NRA members, supporters, potential members, and other persons with whom the NRA communicates, potentially chilling their willingness to communicate with the NRA.”
The ACLU’s lawsuit — which names as defendants the heads of national intelligence as well as the agencies they lead, including the National Security Agency, the FBI, the Department of Defense and the Department of Justice — argues the phone record collection program disclosed by former NSA contractor Edward Snowden is unconstitutional.
The suit, filed in federal court in New York in June, asks the court to halt the datamining effort and purge phone records collected under the program, claiming the government action violates the First and Fourth Amendments of the Constitution
The NRA argues in the brief that it would be “absurd” to think that Congress would take steps to prevent the creation of a national gun registry while simultaneously allowing the NSA to gather records that “could effectively create just such a registry.”
“If programs like those currently justified by the government’s interpretation are allowed to continue and grow unchecked, they could also—contrary to clear congressional intent—undo decades of legal protection for the privacy of Americans in general, and of gun owners in particular,” the brief states.
President Obama and Army Gen. Keith B. Alexander, the NSA’s director, have defended the program. Alexander explained at a computer systems analysts conference in August how how government methods used to collect telephone and email data helped foil 54 “potential terror plots” since 1993.
Most of the “plots” were foiled by surveillance of foreigners overseas, the kind of spying the NSA has done since it was created in 1952 to monitor communications and other so-called signals intelligence.
They keep talking about how critical the NSA stopped “more than 50” terrorist operations. However, every time they’ve described any, the details have shown that the surveillance programs often had little to do with uncovering the plot, and were clearly not a key component of stopping anything. It appears that there story is rapidly falling apart.
The ACLU claims standing as a former customer of Verizon, adding that the government likely has much of its metadata stored in its databases.
The suit also alleges the government’s program exceeds the congressional authority provided by the Patriot Act and singles out a particular provision that has given the government more leeway in obtaining various records for intelligence investigations.
Are the president’s prosecutors criminalizing national security reporting?
The Obama Justice Department’s crusade against leakers just took a quantum leap—and it’s extremely worrisome.
It’s one thing to go after officials who leak classified information to the press. The Obama administration has gone after more whistleblowers and the journalists than all previous administrations combined! Nonetheless, officials with security clearances sign a contract pledging not to share material with the outside world—and they know they could face criminal penalties if they do. (Daniel Ellsberg figured he might go to prison for leaking the Pentagon Papers and was willing to make the sacrifice.)
However, it’s something else entirely to go after a reporter who receives the leak. That’s what federal prosecutors are doing to James Rosen, the chief Washington correspondent for Fox News. And they’re going after him not as a witness to a crime—nor as a pressure tactic to get him to give up his source (in this case, the source has already been caught)—but rather, in the words of a Justice Department affidavit, as “an aider, an abettor, and/or a co-conspirator”: in short, as someone who might be indicted under the Espionage Act.
This has never happened in this country. (Even in the Pentagon Papers case, several newspapers were served injunctions not to publish stories, but no reporter or editor was ever investigated, much less tried, as a co-conspirator.)
If the prosecutors go through with their threat, the entire enterprise of national security journalism—which inherently involves uncovering secrets, to some degree—will be in jeopardy.
A similar case occurred in 2006, during George W. Bush’s presidency. In Lawrence Franklin espionage scandal – U.S. v. Lawrence Anthony Franklin, et al., prosecutors indicted a Pentagon official and two policy analysts with AIPAC under the federal espionage statute. The official, Larry Franklin, was charged with leaking classified information. (He pleaded guilty and served a brief sentence.) The two AIPACanalysts, Steven Rosen and Keith Weissman, were charged simply with receiving it.
The section of the indictment titled “Ways and Means of the Conspiracy” found that Rosen and Weissman:
“… would cultivate relations with Franklin and others and would use their contacts within the U.S. government and elsewhere to gather sensitive information, including classified information, relating to national defense, for subsequent unlawful communication, delivery and transmission to persons not entitled to receive it.”
Those final words are worth noting. They were charged with giving classified information not to foreign governments or spies but simply “to persons not entitled to receive it.”
Also noted in a Slate column at the time, “This is what journalists do routinely every day. They receive information from insiders, write it up in a story, send it to editors, who publish it in newspapers, magazines, wire services, or on Web sites … which are seen by readers who have not been officially authorized to view that classified material.”
If Rosen and Weissman were prosecuted for joining in a “conspiracy” with Franklin on the grounds that they’d received classified material, then the New York Times, Washington Post, The New Yorker, or any number of other publications could be next.
The presiding U.S. District Court judge, T.S. Ellis, made this same inference, noting that the law “applies to academics, lawyers, journalists, professors, whatever.” In the end, though, Ellis dismissed the indictment against the AIPAC analysts for precisely that reason, noting that the statute was too vague, broad, and draconian. (For a jaw-dropping list of all the activities prohibited by the federal espionage statute, click here.)
Now, though, President Obama’s prosecutors are pushing the logic of the AIPAC case to its absurd extreme: They’re labeling a reporter who received classified information as a criminal abettor or co-conspirator.
Rosen’s Fox News story, which appeared in June 2009, did contain serious, possibly damaging intelligence information. It reported that North Korea was likely to respond to some United Nations sanctions, which had just been handed down, by conducting a nuclear-weapons test. It also reported that the CIA learned of this from sources inside North Korea.
The key fact, from a prosecutor’s viewpoint, was that any North Korean official reading this story would now know that the CIA had sources inside North Korea—and that the source (whether it was a human spy, a phone tap, or whatever) would subsequently be shut down, one way or another.
Rosen’s source for the story was Stephen Jin–Woo Kim, a State Department adviser and one of a small number of officials who received a top-secret memo about the CIA finding. Few dispute the Justice Department’s right to prosecute Kim, who did break his security pledge (though many are critical of how often, and how relentlessly, the Obama administration pursues leakers). One might also criticize Rosen or his editors for not writing the story in a way that finessed the fact that the information came from a source inside North Korea. But that’s different from arresting him under the Espionage Act.
It’s possible that the prosecutors won’t indict Rosen, that they called him a criminal co-conspirator in their court affidavit in order to boost the chances that the judge would approve their request to track his email, phone calls, and movements. However, even if that is the case, it’s a dangerous game. Some future prosecutor could use the Rosen affidavit as a precedent to go all the way, to treat some similar reporter—potentially all reporters on the national security beat—as criminal conspirators.
During the Franklin trial back in 2006, Viet Dinh, a former Bush Justice Department lawyer who’d helped write the Patriot Act, filed a “memorandum of law” in support of the AIPAC analysts’ motion to dismiss their indictment. Dinh wrote that the espionage statute had never been applied to recipients of classified information—and that its language is so vague that recipients had no way of knowing whether they were breaking the law.
It would be ironic if we have to rely on a Bush lawyer’s reasoning to block Obama’s prosecutors from going too far.
When the government wants to get a journalist’s or any citizen’s e-mails or phone records does not mean prosecution. A journalist, however, is not very different from other citizens in the eyes of the law when it comes to the government seeking records from a third-party provider such as Google or a phone company.
Applying labels such as co-conspirator provides a probable cause for the judge to grant the warrant, as in the Rosen case. IfRosen offered money or some other reward, it might be a different case. I believe the First Amendment covers the right to publish information, but it does not grant blanket immunity for how that information is gathered.
In 1917, some two months after America’s formal entrance into World War I against Germany, the United States Congress passes the Espionage Act.
Enforced largely by A. Mitchell Palmer, the United States attorney general under President Woodrow Wilson, the Espionage Act essentially made it a crime for any person to convey information intended to interfere with the U.S. armed forces prosecution of the war effort or to promote the success of the country’s enemies. Anyone found guilty of such acts would be subject to a fine of $10,000 and a prison sentence of 20 years.
The Espionage Act was reinforced by the Sedition Act of the following year, which imposed similarly harsh penalties on anyone found guilty of making false statements that interfered with the prosecution of the war; insulting or abusing the U.S. government, the flag, the Constitution or the military; agitating against the production of necessary war materials; or advocating, teaching or defending any of these acts. Both pieces of legislation were aimed at socialists, pacifists and other anti-war activists during World War I and were used to punishing effect in the years immediately following the war, during a period characterized by the fear of communist influence and communist infiltration into American society that became known as the first Red Scare (a second would occur later, during the 1940s and 1950s, associated largely with Senator Joseph McCarthy). Palmer–a former pacifist whose views on civil rights radically changed once he assumed the attorney general’s office during the Red Scare–and his right-hand man, J. Edgar Hoover, liberally employed the Espionage and Sedition Acts to persecute left-wing political figures.
One of the most famous activists arrested during this period, labor leader Eugene V. Debs, was sentenced to 10 years in prison for a speech he made in 1918 in Canton, Ohio, criticizing the Espionage Act. Debs appealed the decision, and the case eventually reached the U.S. Supreme Court, where the court upheld his conviction. Though Debs’ sentence was commuted in 1921 when the Sedition Act was repealed by Congress, major portions of the Espionage Act remain part of United States law to the present day.
Penatgon Papers Lawyer James Goodale: It’s Time for Eric Holder to Resign
The attorney general’s conduct in trying to pass off the James Rosen subpoena as falling under the Espionage Act proves that he is abusing his office. Pentagon Papers lawyer James Goodale has seen this before—in Richard Nixon.
Attorney General Eric Holder should resign for his role in the James Rosen case. He signed off on a search warrant to Rosen, a Fox News Reporter. This warrant treated Rosen as a common criminal.
The basis for obtaining the warrant was that Rosen had conspired with Kim to violate the Espionage Act. That Act does not apply to Rosen. It does however, in the government’s view, apply to Kim. It should be clear to anyone that Holder has run an end run around the Espionage Act by his actions. While Rosen is not subject to the Espionage Act, Kim is. But Rosen might as well be subject to the Act if he can be held responsible for Kim’s actions.
The reason the Espionage Act does not apply to Rosen is that it does not apply to those who publish (or broadcast) information leaked to them. In the Pentagon Papers case, the government asserted initially the Espionage Act did apply to The New York Times, the paper that published parts of the Vietnam Archives leaked to it by Daniel Ellsberg.
If a reporter steps over the line drawn by the Justice Department, he or she may become a criminal. In short, the government has criminalized the newsgathering process.
When, however, the Times proved to the District Court Judge Murray Gurfein that the word “publish” had intentionally been left out of the Act, Gurfein concluded that the Act was inapplicable. Thereafter, the government dropped its use of the Espionage Act and it never appeared in its case again—even at the Supreme Court.
In its affidavit for a search warrant, the government asserted that Rosen had cajoled Kim into violating the Act by trying to get Kim’s story out of him. Any reporter will quickly recognize that Rosen’s efforts are customary newsgathering practices used by all reporters. News does not come over the transom; reporters have to work hard to get it.
The government has now put itself in the position of setting standards for what reporters can and cannot do when they talk to those who have access to classified information. If a reporter steps over the line drawn by the Justice Department, he or she may become a criminal. In short, the government has criminalized the newsgathering process.
Holder’s actions should come as no surprise to those who have been following him closely. Rosen is not the only journalist Holder thinks is a criminal. He is also pursuing Julian Assange, the founder of WikiLeaks. Pfc. Bradley Manning leaked classified information to Assange.
While little noticed, a grand jury was empanelled to indict Julian Assange in 2010, initially seeking charges under the Espionage Act. Holder however, later announced “there were problems” using the Espionage Act for this purpose. Presumably Holder’s problem was that the Espionage Act did not apply to the publication by Assange of Manning’s leaked information on Assange’s website.
Thereafter, Justice Department officials let it be known that the grand jury was proceeding on a “theory” that Assange conspired with Manning to leak to Assange. Assange had also made the leaked information available to Der Spiegel, Le Monde, El Pais and the Guardian. Later the Guardian shared this information with the New York Times, and all of them published parts of the leaked information, as did Assange on his website.
In December 2010, when the Committee to Protect Journalists learned Holder had switched to a conspiracy theory, it wrote a letter to President Obama not to prosecute Assange because such prosecution would criminalize newsgathering. The Committee pointed out to Obama that Assange was a journalist protected under the First Amendment and should not be treated as a co-conspirator. But little did the Committee to Protect Journalists know that Holder had used the conspiracy theory seven months before in May 2010 when he approved the use of the search warrant for Rosen’s records.
As far as anyone can tell, this grand jury is still alive. Assange’s lawyers believe it has already secretly indicted him. They think that as soon as Assange leaves the Ecuadorean Embassy where he is holed up, he will be faced with the indictment in the U.S. for conspiring with Manning.
Asking courts to treat journalists as criminals under the Espionage Act has only been asserted once before Holder started using it. President Richard M. Nixon used it against New York Times reporter Neil Sheehan, who obtained the Vietnam Archives from Daniel Ellsberg. Following the Pentagon Papers case, Nixon convened a grand jury to indict Sheehan for conspiring to cause the leak of the Pentagon Papers. Nixon failed in this effort and the grand jury disbanded after 17 months.
The difference between Nixon and Holder is that Nixon failed in his effort to treat Sheehan as a co-conspirator. Nixon therefore could not create the precedent that reporters could be treated as criminals. Holder has. He should resign!
Karl Rove: Prosecute ‘people who break their oath’ by leaking secrets
Fox News on Monday asked former Bush White House senior adviser Karl Rove, who participated in leaking the name of CIA agent Valerie Plame in 2003, to comment on the Obama administration’s decision to investigate Fox News reporter James Rosen as a co-conspirator in leaking CIA documents.
The Washington Postreported on Monday that the FBI had accused Rosen of illegally soliciting information about North Korea from government adviser Stephen Jin-Woo Kim in 2009. The FBI allegedly searched Rosen’s emails and tracked him as he used a key card to enter and exit the State Department.
In a statement, Fox News executive VP of news Michael Clemente called the investigation “downright chilling” and “promised to unequivocally defend” Rosen.
Rove told Fox News host Megyn Kelly on Monday that “every American has sympathy for the release of confidential secret information of the government” but that the news about Rosen was “deeply troubling.”
“The focus should be on the people who break their “oath” (?) and put the American people at risk, not on reporters who gather this information,” Rove explained. “That should not be the focus of these investigations.”
“We had to confront this question during the Bush administration. There were leaks of classified information and in each and every instance, the focus was on the potential leak, not the reporter who received it,” he continued. “Can you imagine what would have happened if The New York Times, which was the recipient of a number of those confidential leaks, if the Bush administration had asked for the phone records — secretly asked for the phone records of up to 100 of editors and reporters at The New York Times?”
Kelly reminded Rove that he had a role in leaking Valerie Plame’s identity, and that former New York Times reporter Judy Miller — who now works for Fox News — was jailed for 85 days for refusing to testify against I. Lewis “Scooter” Libby, former Vice President Dick Cheney’s Chief of Staff.
But Kelly argued that this case was different because the Department of Justice had obtained Rosen’s emails instead of jailing him for contempt.
Formation 1963 Legal status 501(c)(4) President Michael Kassen Budget $67 million Website aipac.org
While prosecutors said several 2009 court rulings would have made it almost impossible to obtain a guilty verdict and forced disclosure of large amounts of classified information, defense lawyers and some legal experts said the government was wrong in the first place for trying to criminalize the kind of information horse-trading that long has occurred in Washington. Steve J. Rosen, AIPAC’s then-policy director, said he met with senior government officials all the time.
Two top officials at the State Department’s Diplomatic Security Service (DS) — the federal law enforcement agency that protects American diplomats and investigates allegations of criminal misconduct by State Department employees — gave sworn testimony earlier this year that appears to be evasive at best, and untrue at worst, according to evidence obtained by Fox News.
The officials are Scott Bultrowicz, who until Feb. 1 served as director of DS, and Tracy H. Mahaffey, who remains the executive director of DS. In videotaped depositions conducted this past February, Bultrowicz claimed not to know about any claims by a federal agency that DS officials have failed to follow proper procedures; and Mahaffey claimed not to know about any pending investigations into DS.
Yet Fox News has obtained meeting notes, draft reports and other evidence that suggest both officials were aware, at the time they were deposed, of a pending investigation into DS and its operations by the State Department’s Office of Inspector General (OIG). What’s more, both officials had been apprised of the OIG’s preliminary finding that DS did indeed fail to follow proper procedures in at least eight cases, and possibly more, because of “undue influence” and “pressure” brought to bear by senior State Department officials to halt internal investigations.
If these folks lied under oath, they are just following the example set by top U.S. government officials like Eric Holder and James Clapper.
Clapper’s defense: it depends on what the meaning of the word is collect is. By saying we don’t “collect” data on Americans, I didn’t mean “collect,” you see, I meant “look at.” (Maybe it depends on the definition of the word “wittingly”!)