House passes Freedom Act, but no protection for foreign sources

Anti-spying rally.

Yesterday, the U.S. House of Representatives passed the USA Freedom Act, a bill that takes limited steps toward reining in the sweeping surveillance programs revealed last year by former National Security Agency contractor Edward Snowden. The legislation, which was significantly reduced in scope in the days before its passage, would require at least an indirect link between a target and a terrorism suspect in order for the NSA to obtain domestic phone records. 

Yet little attention has focused on an important side effect of the NSA’s surveillance programs: that reporters can no longer expect to communicate privately with sources outside the United States. 

Earlier this month, a brief by the U.S. Justice Department highlighted the extent to which the Constitutional protections that are taken for granted by many U.S. journalists – and their sources – stop at the water’s edge. “The privacy rights of U.S. persons in international communications are significantly diminished, if not completely eliminated” as long as the surveillance is aimed at the foreign end of the conversation, the Justice Department wrote. 

“There’s not much hope other than self-help, as in encryption, for a reporter who wants to protect their foreign sources,” said Stuart Taylor, a senior fellow at the Brookings Institution who specializes in constitutional and media law.

This lack of privacy rights stands in contrast to the better-known rules that protect journalists within the United States. Last year, following criticism of the Justice Department’s treatment of journalists during its ongoing crackdown on classified leaks, the Department revised its media policy to provide additional safeguards for reporters doing their jobs.

Among the protections added or affirmed in the Department’s new media guidelines are that reporters will not be prosecuted solely for newsgathering activities, that reporters will not be subjected to search warrants or court orders for materials generated by their official duties without the Attorney General’s approval, and that the Department will in almost all circumstances provide advance notice of any subpoenas or wiretaps of reporters.

“The Department is constantly working to ensure that we strike the appropriate balance in the use of all of our investigative tools,” said Marc Raimondi, the Department’s national security spokesman. “We will not, and do not, use intelligence collection tools to circumvent or undermine our media policy.”

However, the nature of the NSA’s overseas surveillance renders many of these protections moot when an American reporter contacts a foreign source. Although the government may not target the reporter, any communications with Americans picked up in surveillance of the foreign target are considered “incidental” and may be scrutinized by U.S. intelligence agencies. Between the American reporter and the foreign source, it is the foreigner’s lack of privacy rights that provides the operating principle. 

“The Supreme Court has held that the 4th Amendment [prohibiting unreasonable search and seizure] does not apply to foreigners overseas,” said Taylor of the Brookings Institution. “That logic means that there’s no real protection for reporters and their sources.”

The significance of this lack of protection depends largely on the scope of the NSA’s foreign surveillance. If the agency limited itself overseas to targeting terror suspects and their networks – as it would be required to for domestic surveillance under the bill approved yesterday in the House – only a tiny subset of reporters would potentially come under scrutiny. 

Yet the documents revealed by Snowden indicate that foreign surveillance is far more sweeping. The NSA’s Prism program obtained direct access to systems of Google, Facebook, Apple and other internet companies to conduct in-depth surveillance of emails and internet activities of foreigners and communications between Americans and foreigners, examining the content of communications as well as their metadata. The agency has also tapped the phones of numerous foreign leaders and politicians, including American allies such as Germany’s Angela Merkel, and has conducted extensive and routine surveillance of foreign businesses and trade negotiators. 

In short, it has become impossible to assume that a prominent figure outside the United States is not being subjected to surveillance.

“In theory they can go after any foreigner they want,” Taylor said.

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