It would be like turning off the water – it's that natural and taken for granted. I'm from the generation of journalists that were ‘born and bred’ with it [Freedom of Information]. The first job you got in a newsroom was to do the rounds at different government agencies, read their mail and archive indexes, and to learn how to interpret them. (Lidberg 2009b)
The above quote is from a news editor in a news room in Sweden describing the importance of freedom of information (FOI) to all levels of journalism in Sweden, from routine news reporting to the most advanced in- depth investigative reportage. This can be contrasted with the statement of a news editor in Australia:
I have nothing to say on the topic since we don't use FOI as a journalistic tool; besides, as far as I am concerned, FOI is dead. (Lidberg 2009a)
The quotes describe the quite extreme difference between the practical functionality of access to information regimes in mature liberal democracies. As mature democracies share the core values of freedom of expression and press freedom, which requires extensive access to information to be utilised in a meaningful way, one would assume that the access to information systems would be reasonably similar. This is not the case.
FOI is a useful point of assessment when it comes to how serious a country is regarding openness and transparency in governance, which is closely linked to the health of the democratic system. The pointy end of the openness process is of course matters of national security, intelligence and law enforcement. Releasing noncontroversial information to the public is easy; documents connected to national security is an entirely different matter.
It is important to keep in mind that no matter how advanced the visualisation tools and other software utilised in modern journalism, they can never replace the importance of independent access to raw information. The old adage holds true: poor information in, poor story out.
‘Who watches the watchmen?’ is a phrase often applied to accountability connected to journalistic practice (Leveson 2012). In this chapter, it is applied to the security and intelligence services whose primary task it is to guarantee the safety of the citizens in the countries in which they operate.
This book opened with a quote from US author and Washington Post journalist Barton Gellman:
So where we are now is in a place where we're living behind one- way mirrors. Corporate America and law enforcement and the national security state know so much about us and we know so little about them. We know so little about what they're doing and how they're doing it. And we can't actually hold our government accountable because we truly don't know what it's doing.
This quote is from part two of a Public Broadcasting Service (PBS) documentary called United States of Secrets. But Michael Hayden, former Director of the US National Security Agency (NSA), countered Gellman's sentiment in the same documentary:
Look, let me give you the existential complaint of the US intelligence community. Here's how it works living inside Americas liberal democracy of which the intelligence community is really a part. American political elites feel very empowered to criticise the American intelligence community for not doing enough when they feel endangered. And as soon as we've made them feel safe again, the feel equally empowered to complain that we're doing too much.
These two entirely reasonable propositions vividly illustrate how complex is the policy task of achieving balance between national security and preservation of liberal democratic freedoms. The aim of this book was to assess how this balance has been struck across a range of diverse democratic polities in the post– 9/11 era. The broad policy response has been defined by Agamben (2005), when he coined the phrase ‘state of exception’. It captures the idea that in times of (perceived) exceptional peril, states use this fear- driven security paradigm to make some incursions upon the civil liberties that are central to defining a democratic society: freedom of speech, freedom of the media, public access to government information and accountability of government agencies.
What effect is this ‘state of exception’ having on journalism and its role as provider of information to the public and in its capacity to function as the fourth estate, the independent watchdog over state power? That is the central question addressed in this book.
Investigative journalism cannot exist without public confidence in the journalists’ ability to protect sources, including sources which may be of interest to national security and law enforcement agencies.
Historically concerns about protection of sources have centred on the powers of courts to require journalists to name sources or to produce confidential data in the context of litigation. However, a key issue today relates to their ability to protect sources in the face of technological developments that now pose a substantial threat to anonymity. This chapter commences with a discussion of the technological contexts that frame the issues further explored in subsequent chapters, and considers their implications for investigative journalism. These developments are especially significant for sources of information who may be of interest to agencies in a context where there are many laws that attach criminal and other consequences to whistleblowing.
There then follows an analysis of the relevant regulatory frameworks. A key issue of current concern relates to the limited protection that is available for so- called metadata, coupled with legal requirements in some jurisdictions for telecommunications providers and internet service providers to retain metadata so that it can potentially be accessed by agencies.
The chapter concludes by considering the implication of these matters and the revelations by Edward Snowden concerning the range and scope of surveillance practices currently in use by national security agencies in the Five Eyes intelligence sharing group.
The Technological Threats
The technologies that pose threats to the protection of journalists’ sources fall into three groups: technologies that undermine the ability of individuals to remain anonymous in public places, technologies that make it possible to identify individuals’ physical locations and geographical movements and technologies that undermine the security of data stored or communicated electronically.
The first involves technologies that can be used to identify individuals with a high degree of accuracy, including via the algorithms used for face recognition which facilitate the automated operation of closed circuit television (CCTV) networks and other visual surveillance activities (Kuner et al. 2013, 1– 2). It is most aptly illustrated by face recognition applications that allow agencies, and smartphone users more generally, to photograph strangers and to instantly see that person's name and occupation, and even visit their social media profiles in real- time (Storm 2016).
The rise of the surveillance state simultaneously hinders and helps the practice of investigative journalism. It also hides from view a perennial and very human problem – the interaction between journalists and their sources. There is a good deal packed into those two sentences, so let me explain. The advent of web 2.0 this century has ushered in a range of new digital communication technologies that make it possible for a range of state actors, such as police and intelligence agencies, to monitor citizens, including journalists, through their online activity, whether on their computer or smartphone. The extent to which our lives can be tracked via our digital footprint raises questions in itself, but they are magnified for journalists who are duty- bound to scrutinise and even challenge those in charge of the surveillance. The perennial weighing of the needs of national security against civil liberties has tilted inexorably toward the former in recent years, following the 9/11 terrorist attacks and more recently the rise of Islamic State.
These and other developments that hinder the practice of investigative journalism are discussed elsewhere in this book and so will not be the focus of this chapter. The same digital communication technologies, though, have helped investigative journalism immeasurably as they have enabled the leaking of massive caches of documents that dwarf previous landmark leaks, such as the Pentagon Papers. This practice was pioneered by WikiLeaks, beginning in the mid- 2000s and achieving global impact in 2010, with the release of logs about the wars in Afghanistan and Iraq that followed the 9/11 attacks. Where the Pentagon Papers comprised about 2.5 million words, the Afghan and Iraq War Logs amounted to an estimated 300 million words (Harding 2011, 5). Only excerpts of the Pentagon Papers were published by the New York Times when they were leaked by Daniel Ellsberg to the newspaper in 1971 (US National Archives 2011). The practice was cemented in 2013 when Edward Snowden, a former contractor to the National Security Agency (NSA) in the United States, leaked thousands of pages of NSA documents to independent documentarian Laura Poitras and freelance journalist Glenn Greenwald that were published by the Guardian (Greenwald 2014).
The post-11 September 2001, era has unleashed a plethora of laws invoking national security and antiterrorism justifications that have severely compromised a range of human rights and civil liberties, including freedoms associated with expression and information access. Roach has described such laws as ‘hyper- legislation’ (2011, 310). Such legislation has inflicted oftenunjustified constraints upon journalists and journalism. The overly broad antiterrorism laws potentially ensnare reporters covering security matters and have inflicted repeated blows on investigative journalism in recent times (Weisbrot 2016). Insufficient attention, however, is paid to the potential for these constraints to be informed and moderated by the constitutional and human rights frameworks in which such laws are enacted. There has been inadequate resolve to protect the public interest by ensuring that journalists and journalism are able to properly perform their professional duties and obligations. This chapter uses archival research, analysis of statutes and case law to examine how freedom of expression constitutional and human rights provisions in the Five Eyes democracies have, in reality, offered minimal protection to journalists and their sources – particularly in Australia, where a constitutional protection for freedom of expression is lacking. The absence of strong protections or the rampant undermining of existing protections, in the face of what Agamben (2005, 1) describes as an ongoing ‘state of exception’ in the post– 9/11 war on terror, presents the need for new mechanisms to provide journalists and their confidential sources adequate protection to enable them to fulfil their professional obligations.
The authors argue that the long- held importance of freedom of expression in democracies supports the introduction of workable and explicit public interest defences to allow for the reporting of national security matters without endangering journalists or the sanctity of their obligations to confidential sources. The chapter undertakes a case study of Australia which, unlike the other Five Eyes intelligence alliance members – New Zealand, Canada, the United Kingdom and the United States – has no explicit constitutional or human rights framework to compel the courts or the Parliament to recognize the adverse implications of legislation upon free expression or a free media.
In 1954, an Australian Security Intelligence Organisation (ASIO) operative added another file to Rohan Rivett's voluminous dossier. Rivett was, at the time, the editor of Rupert Murdoch's beloved Adelaide News. The memo read:
The file note conveyed the common elements of many journalists’ security reports: the conspiratorial anxieties about communism and ‘pink’ ideas, morality, journalist identity and the power of the press. It also reveals a pattern and commitment to continual monitoring and a determination to silence the press regarded as ‘suspect’ – no matter how nebulous the evidence.
This chapter will examine the early surveillance of Australian journalists between 1916 and the late 1960s, integrating the experiences of Rivett, Godfrey Blunden, Sam White and little- known members of the Australian Journalists Association (AJA). The suspicion about journalists peaked at the height of the Cold War, when ASIO (the Australian Security Intelligence Organisation) ran what is termed ‘Spoiling Operations’ in the press. This involved editors and journalists running stories by ASIO based on security information leaked to newspaper editors, and later radio and television management.
So where we are now is in a place where we're living behind one- way mirrors. Corporate America and law enforcement and the national security state know so much about us and we know so little about them. We know so little about what they're doing and how they're doing it. And we can't actually hold our government accountable because we truly don't know what it's doing. (Smith 2014, interview with Barton Gellman, journalist, Washington Post)
In the ongoing stream of events that we call history, there are events that challenge established paradigms and force a shift in the flow of history. The terrorist attacks of 11 September 2001 was one such event. The attacks on US soil by an international network of terrorists arguably provoked the greatest change in the conduct of Western democracy since the end of World War II. Simultaneously, it had an impact on global politics similar in scope to the end of the Cold War, which was marked by the collapse of the Berlin Wall in 1989.
These two events promised very different futures. The end of the Cold War promised a new, more open and peaceful world order, characterised by the democratisation of the former eastern European bloc and the end of the nuclear- deterrence mindset known as mutually assured destruction (MAD). This atmosphere of promise was abruptly shattered by the terrorist attacks of 9/11. Those events unleashed an entirely new series of wars, most of which continue to the present day. They began in 2003 as a war of pre- emption engaged in by the United States against Iraq, and continued in 2005 as a war of retribution against Afghanistan for suspected harbouring of the terrorist leaders responsible for the 9/11 attacks – particularly Osama bin Laden, the figurehead of the terrorist network al- Qaeda. These missions were launched under the political slogan the ‘war on terror’, and pushed the world into a new, fear- driven security paradigm (Schmitt 2005).
In the month before David Irvine stepped down as the director of the domestic intelligence agency, the Australian Security and Intelligence Organisation (ASIO), he claimed in an interview that, based on recent opinion polls, ASIO and other security organisations enjoyed continued and strong support from the public. On the surface, he appeared to be right. But there are a number of issues that need to be considered when assessing this claim. This chapter will describe public perceptions of security agency performance and powers, and perceptions of how governments in Australia, the United States and the United Kingdom have struck the balance between protecting national security and preserving civil liberties, especially those of free speech, free media and privacy. The principal method employed for this chapter is a longitudinal meta- analysis of opinion polls in Australia, the United States and the United Kingdom regarding the trust in security agencies and the level of accountability and oversight.
For much of the post– World War II period, from 1945 until the fall of the Berlin Wall in 1989, the Australian security services were deeply preoccupied with Cold War counter- espionage. The main agency responsible for this work was the domestic intelligence agency, the Australian Security Intelligence Organisation (ASIO). As its official history shows, its successes were few and its failures many. The official historians do not attempt to varnish this record. They report that throughout the post- war period, ASIO had one notable counter- espionage success: the defection of a Soviet spy, Vladimir Petrov, in 1954, and a lesser one, the expulsion of another Soviet spy, Ivan Skripov, in 1963 (Blaxland and Crawley 2016).
Among the notable and highly publicised failures were the wrongful conviction of six Croatian men over an alleged terrorist plot in Sydney, the failure to prevent the assassination of a Turkish diplomat in Sydney in 1980 and the failure to prevent the Hilton Hotel bombing in Sydney in February 1978. The hotel was the venue for the Commonwealth Heads of Government Regional Meeting (CHOGRM), and among the heads of government attending was the Indian prime minister, Moraji Desai. A bomb was planted in a rubbish bin outside the hotel, and when the bin was emptied at 1.40 in the morning, it went off, killing two garbage collectors and a policeman standing nearby, and injuring 11 other people.
The use of Unmanned Aerial Vehicles (UAVs) or drones, as they are commonly known, for surveillance purposes and for lethal operations against suspected terrorist targets was at the centre of United States counterterrorism policy during Barack Obama's two- term presidency, and is now being continued by Donald Trump's administration. While the US use of drones, especially for so- called targeted killings, has been the most discussed and controversial use of drone technology, their use for non- military purposes is becoming increasingly commonplace. Drones in all shapes and sizes are entering our skies, raising serious questions about how they are being used, by whom, for what purposes and with what consequences.
For journalists, drones pose a range of challenging questions. At the lethal end of official government drone usage, how can journalists verify what has or has not been executed with a weaponised drone when their deployment is still largely shrouded in secrecy and their effects often too remote geographically for reliable accounting after the fact? How might journalists themselves use drone technology to access visuals or sound recordings that they would otherwise not be able to reach? What does this technology do to privacy, to public safety and to civil rights whether being used by government, by journalists or by private companies? How might journalists themselves be targeted with drones to expose their work and potentially undermine their freedom to gather information and investigate government or private sector practices?
This chapter will engage with the wide range of drone technology applications by the military, police, government agencies, private sector companies and individuals to ask what will happen as drones become more ubiquitous over the skies of the United States, Britain, Australia and other countries.
This chapter continues the outlook beyond the Five Eyes countries that started in Chapter 9. It provides further points of reference regarding the balance between security and openness, and puts those in relation to the Five Eyes group.
Europe carries a dark legacy when it comes to the balance between national security, intelligence and the people's right to know what is being done in their name. The aftermath of the ‘war to end wars’ (Wells 1914) did not go as planned – at all. Instead the heavy war retribution imposed on the losers of World War I (WWI) set the continent on the path to the 1930s, which saw the rise of a number of European totalitarian governments that eventually led to World War II (Gateva 2015).
As discussed in some detail in Chapter 6, during the international soulsearching that followed in the United Nations after the end of World War II, it was concluded that one of the reasons for the war was too much secrecy within and between countries (Lamble 2002). Some form of inter- country integration was seen by European political leaders as one way of breaking down these barriers. As early as 1946, Winston Churchill gave a speech at the University of Zurich in which he set out a vision for what he called ‘a kind of United States of Europe’. This ideal was the foundation of the European Union (EU) (Gateva 2015).
It started as three trade communities, the European Communities (EC), formed during the 1950s. Already at this early stage the founders of the EC articulated the ideal that close economic bonds, manifested by trade, could help secure long- lasting peace in Europe. So, just as the United Nations was a product of World War II, it could be argued that so was the EC, and eventually the EU (Gateva 2015).
Eventually as the EC evolved, the European cooperation deepened and led to the four freedoms on which the EU project rests: freedom of movement of goods, services, persons (including labour) and capital. The four freedoms are enshrined in the 2009 Treaty of Lisbon on which the European Union rests (ibid).
There has been much discussion about whether the EU is the start of a federated Europe.
There is an emerging consensus that the four institutional pillars of democracy – legislature, executive, judiciary and media – function differently, albeit in varying fashion, among the nations bracketed as ‘emerging’ or ‘developing’. Initially the intention of this chapter was to include all BRICS countries – Brazil, Russia, India, China and South Africa – but after preliminary research, it was concluded that the legislature and executive branches in Russia and China possess significantly more powers than in the other BRICS countries (Wahl- Jorgensen and Hanitzsch 2009). The judiciaries in China and Russia are not, at this point in time, independent enough to make for a fair comparison with the other BRICS countries (ibid). Such political and legal realities severely impinge upon the independent and free functioning of the media, especially investigative journalism, in Russia and China (Josephi 2011). It was therefore decided to limit this chapter to the BISA countries – Brazil, India and South Africa.
The relationship between actions by the state, such as new laws, and journalism has become even more pertinent and crucial in the post– 9/11 period, when most countries, whether developed, developing or least- developed, have sought to tackle real or percieved terror- related attacks against them and terror activities on their soils. Like others, BISA too have enacted dozens of new laws, the executives in these nations have interpreted them in different ways and the respective judiciaries have set contrary and contradictory precedents. Therefore, it is imperative to study and analyse how laws pertaining to general security, and national security in particular in the past 15 years have impeded or aided investigative journalism in their respective countries. Is investigative journalism encouraged or oppressed by the new laws in these nations?
If the answer to the question is that investigative journalists are under threat or cowed by the state, its laws and their interpretations, this is a major threat to independent media and its professionals. In two of the three BISA nations, Brazil and India, there are several reports of state- inspired or statedriven violence against journalists, or serious charges, such as sedition, filed against them (RSF 2016).
As national governments enact increasingly restrictive laws about what may or may not be published in the interests of national security, the ethical requirements on journalists reporting in this field have become correspondingly more complex. Yet, in the face of these complexities, the requirements set out in professional codes of ethics do not yield. These obligations remain undiminished: to act in the public interest, to protect the identity of confidential sources, to avoid avoidable harm, to tell the truth as best it can be ascertained and to hold those in power to account.
This chapter discusses each of these obligations in the context of the legislative changes enacted in Australia since the 9/11 terrorist attacks on New York City and Washington. It also discusses the ethical challenges posed by the unprecedented availability of large amounts of previously secret data through the document dumps of Wikileaks and Edward Snowden. The availability of secret data tested many of the ethical obligations already mentioned, and placed strains on another cornerstone of journalistic ethics: editorial independence. Although this analysis is based on the Australian situation, the ethical challenges for journalists in democratic polities working under similar legal regimes are identical, given the universality of the ethical requirements on journalists (see, for example, Keeble 2001).
A Definitional Challenge
A threshold ethical duty for journalists when confronted by the possibility that a matter of national security might be at issue is to ask: Is this in fact a matter of national security? A former editor of the Age, Melbourne, Creighton Burns (1981– 1989), in discussing the possibility of a system of voluntary constraints on the media, identified, as a central problem, the development of a consensus on how ‘national security’ would be defined: ‘There are clearly things you would not publish and I believe editors should not put the lives of intelligence people at risk but, beyond that, I'm not sure how precisely “national security” can be defined. Often it simply means the comfort of the government of the day’ (Yallop 1995, 11).
The announcement of new national security laws to be introduced in Australia in mid- 2014 sparked political, public and media debate about the complex balance between freedom and security in a liberal- democratic society. Between July 2014 and March 2015, the Coalition Government, led by conservative Prime Minister Tony Abbott, proposed and passed the National Security Legislation Amendment Bill (No. 1) 2014 (Cth) (National Security Amendment Bill); the Counter- Terrorism Legislation Amendment (Foreign Fighters) Bill 2014 (Cth) (Foreign Fighters Bill); and the Telecommunications (Interception and Access) Amendment (Data Retention) Bill 2015 (Cth) (Data Retention Bill). Together, these were presented to the public as giving security agencies the powers necessary to protect citizens at a time where technological change intersected with increasing international and domestic threat (for a comprehensive overview of the security and and antiterror laws passed since the 9/11 attacks in 2001, please see Chapter 3).
While all three bills were the subject of intense interest, the first and last attracted media industry concern about the impact of elements of these laws on journalists and journalism. Central were considerations about how increasing restrictions would affect press freedom and public interest journalism. Some echoed political discourses: an editorial in the Australian (2014b) argued that while freedom of speech was vital, journalists needed to acknowledge that ‘the nation faced the new and genuine threat of home- grown terrorism’ and that ‘above all, Australians want to live as freely and as safely as they possibly can’. Counterarguments emphasised the value of press freedom for democracy. Journalists could now go to jail, veteran political reporter Laurie Oakes (2014) argued in the Herald Sun, for ‘doing their most important job: holding those in authority to account’.
Australian journalists’ core identity and values were mobilised on both sides of the debate in this way. Discussions focused on section 35P of the National Security Amendment Bill, which introduced a penalty of up to ten years’ imprisonment for disclosing information related to a ‘special intelligence operation’ (SIO) (Farrell and Hirst 2014), and requirements in the Data Retention Bill for telecommunications companies to ‘retain customers’ phone and computer metadata for two years’ (Bennett and Yaxley 2015).
The return of popular anger against elites challenges a number of bold arguments among social scientists, who have expended much effort in conceptually disempowering them. Once easy to comprehend, power has been successively redefined to drain it of menace, to shift its location (from the holders to those on the receiving end) and eventually to make it vanish altogether. Once this diffusion, dilution and dissolution of power is accomplished, it becomes a retrograde step to start pinpointing small, identifiable groups that hold concentrations of it or make coordinated use of it. So elites have remained invisible in many accounts of contemporary economic and social change, even when their restored or never- ended presence is being plainly felt elsewhere.
This analytical disinvention of power disposes of the concept of elites as wielding it in disproportionate amounts, or for sinister purposes. As classically defined by C. Wright Mills, power elites consist of individuals who ‘are in positions to make decisions having major consequences’; and ‘given the enlargement and the centralization of the means of power now the decisions that they make and fail to make carry more consequences for more people than has ever been the case in the history of mankind’ (1956: 4 and 28). The ‘major consequences’ of their decisions – transforming hundreds or thousands of lives at a time through a policy change, design choice, plant closure or troop deployment – distinguishes the power elite from ordinary technocrats or professionals, reducing its numbers to a nameable headquarter- dwelling handful. The means of power, and the concentration of economic resources that can buy power, have enlarged and centralized further since Mills's assessment, extending the reach of the US power elite across the world while enabling other large countries’ power elites to engage with and challenge it. Their success in wielding such magnified power without correspondingly increased public protest – despite the frequently adverse consequences of their power- play – owes much to their capacity for cloaking the reins.
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