Introduction

JOANNE MYERS: Good afternoon. I’m Joanne Myers, director of Public Affairs Programs, and on behalf of the Carnegie Council I would like to express my appreciation to the Committee to Protect Journalists [CPJ], especially Magnus Ag, for their assistance in arranging this program and for providing each of us with a complimentary copy of the CPJ’s comprehensive annual assessment, entitled Attacks on the Press: Journalism on the World’s Front Lines. If you don’t have a copy, please take one when you leave.

This year, in addition to the chapters on the increasing risks to the personal safety of journalists, there is a focus on digital surveillance. It has been said that information is the oxygen of democracy. If you agree, then it would seem to follow that we, the public, have a right to know about the actions and decisions of our leaders at all levels of government, and we should be able to rely on the press to be that essential element of the equation to enlighten us on what we should and need to know.

But in the past year the Snowden affair has cast doubt on this premise, placing a new spotlight on the adversarial relationship between government and the press. This tension has revealed that the government’s capacity to store transactional data, including the content of communications, undermines journalists and their ability to protect sources. In turn, it places journalists under a cloud of suspicion, threatening press freedom.

Moreover, the scope of the NSA’s [National Security Agency] digital spying raises doubts about the U.S. commitment to freedom of expression and strengthens the hand of China as well as other restrictive nations, such as Turkey, Iran, and Russia, and their own calls for more government control over the Internet.

Three pieces in this year’s report analyze the damaging effects to press freedom caused by the U.S. mass surveillance programs, raising such issues as: How has the dragnet of electronic surveillance affected journalists, their integrity, and their ability to tell the truth; and, going forward, what strategies are needed to safeguard the free flow of information around the world?

Please join me in welcoming two of the most knowledgeable journalists on this issue, our guests today, Joel Simon and Jacob Weisberg. Thank you for joining us.

Remarks

JACOB WEISBERG: Thank you, Joanne, and thanks everybody for coming out on a dismal evening. I am here in my capacity as a member of the board of the Committee to Protect Journalists.

For those of you who don’t know, this is an organization that does incredibly important work, not just intervening and working on behalf of journalists who are in physical jeopardy and trying to look out both for American and international journalists in every country in the world in which they are in serious physical danger, but also in being an advocate for the rights of the press, for freedom of reporting, and for the expanding world of what can be considered journalism. Joel has been not only a friend of mine, but a director for many years, and has presided over a real growth in what the organization takes on.

But it’s interesting this year. We do this book every year, Attacks on the Press, which I think a lot of you picked up on the way in. This is an extremely valuable survey every year that is usually very focused on physical jeopardy, places where journalists are threatened, killed, imprisoned, tortured for doing their jobs, and also we have been very focused on the issue of impunity—that is, whether the people who threaten and harm journalists are subjected to any possible risk of prosecution.

But this year we led with a series of essays, one that Joel Simon wrote, an introduction I wrote, and a longer piece by Geoff King, not about physical threats to journalists, but about a more abstract threat of surveillance.

I wanted to ask you, Joel, to start out by giving your thoughts on doing that, to elevating that issue to prominence alongside people in Pakistan, Egypt, Vietnam, India, Iran—all the countries where to be a journalist can involve taking your life in your hands.

JOEL SIMON: I think there has been an evolution in what we understand as the meaning of «press freedom.» Press freedom traditionally has meant the physical integrity of the people involved in gathering and disseminating this information, their ability to carry out this critical work, and the legal and regulatory environment in which they operate.

But technology has completely transformed this process in a way that makes the actual medium, the communication infrastructure, the global communication infrastructure, critically important to the exercise of this function. So any threat to that infrastructure is an issue for us. In the last year—or more than that really, but certainly it has come to a head in the last year—surveillance has emerged as a threat to this new global information order. There are several ways in which this has occurred.

One is that, obviously, journalists cannot do their work if they cannot protect their sources, if they cannot communicate with the people they need to communicate with in order to gather and disseminate this information. The awareness now of the pervasiveness of surveillance has changed the equation for many journalists. We can get into that a little bit more. This directly affects journalists themselves and the work that they do.

The second is more abstract. It is just a confidence in the medium itself and its independence, its ability to function independent of government intrusion and involvement. I think that has fundamentally shifted in the last year as well.

Those are the two issues that we are focusing on.

JACOB WEISBERG: So you see the issue of whether journalists can do their job and how they have to do their job as a censorship issue; or would you keep it distinct?

JOEL SIMON: It’s not necessarily a censorship issue. It can become one. But surveillance doesn’t necessarily produce direct censorship, in that the information can still be gathered and disseminated. Often what come are the consequences of that. The consequences could accrue to the journalists themselves or to their sources. So what you often see is self-censorship, an unwillingness to undertake certain kinds of reporting or difficulties in undertaking that kind of reporting because of the perception that the communication itself is monitored, that surveillance is essentially smothering.

JACOB WEISBERG: Let me play devil’s advocate a little bit and say that national security reporting is always a bit of a cat-and-mouse game. Often, long before we were talking about any of these surveillance issues, sources are breaking the law, taking grave risk to their own careers, and possibly their freedom, by talking to journalists. Journalists still have the same protections we have always had—

JOEL SIMON: In this country.

JACOB WEISBERG: In this country. We’re talking about in this country.

So maybe the cat has gotten a little better and the mouse has got to be a little mousier to do this kind of reporting. But, given where the technology has gone, isn’t that just the inevitable evolution?

JOEL SIMON: Well, I think there is a fundamental shift. I think that the perception of how the technology is utilized, many people think about it very differently. If you talk about journalists and the way they communicate, they think about the risk in different ways.

I think that the key is also to internationalize this phenomenon. To my mind, what has happened in this country, with the Snowden revelations and the increasing awareness about the NSA’s ability to track communication—keep in mind that there is a big uproar in this country, but most of the risk is actually outside the United States when you were talking about NSA surveillance.

And the risk from national governments is even greater, because this technology to my mind is a bit like drone technology. Right now the United States and the NSA have this tremendous technological advantage. But what you need in order to carry out this kind of surveillance is cheap data storage, and the price of data storage is coming down, is coming down, is coming down. So I think more and more governments are going to undertake this kind of surveillance operations, and that is going to have a tremendous impact on journalists at the national level.

JACOB WEISBERG: We should talk about this data storage question in a minute. But first, I want to go a little deeper into that distinction between the rights and threats to U.S.-based journalists working for American organizations and international journalists reporting on national security.

If you are an American journalist covering national security, practically your work is very different than it was several years ago. You’ve got to become an expert on encryption; there are questions about whether you can have any way to offer a source a genuine guarantee of anonymity.

JOEL SIMON: The whole notion of issuing a subpoena to journalists to get them to reveal their sources may be obsolete. There have actually been reported exchanges of law enforcement basically saying, «We are not going to need subpoenas. We are not going to need to subpoena journalists because we can subpoena the people you have communicated with, get their emails, find out who they have been talking to.» We are seeing that process already.

JACOB WEISBERG:How big a concern is the targeting of American journalists themselves with surveillance, or is the government able to, as you say, get what it needs just by going after the sources?

JOEL SIMON: I think that if you talk to U.S. journalists, the threat is more abstract. They’re like, «Well, I communicate in different ways, I think about this a little more, I worry about my sources.» Certainly I hear that a lot.

But if you talk to journalists outside the United States, there have been a couple of incidents, particularly that have been revealed by some of the Snowden documents, particularly an NSA operation, to essentially hack into the communications in the structure of Al Jazeera. Now, we don’t know if there are other examples of this, but there is no legal prohibition. There is nothing preventing the NSA essentially from getting this information. So if you are working outside the United States and you are talking to people that U.S. intelligence might be interested in, you’d better be worried.

JACOB WEISBERG: Because you’re not protected by the First Amendment and there are no limits on the surveillance.

JOEL SIMON: There are no limits. In fact, you can argue, from the perspective of the NSA and their role of protecting national security, that they almost have an obligation to try and get this information if they believe that it enhances U.S. national security. There are no legal restrictions. There is nothing preventing them from trying to get it.

JACOB WEISBERG: Since the first Snowden revelations, which were almost exactly a year ago, when The Guardian first published them, there have been two concurrent reactions. One has been outrage at Snowden himself for creating what people in the government say is very severe harm to national security, and the argument about what should happen to him, whether he should be prosecuted, whether he’s a villain, whether he’s a hero. But concurrent with that has been a surprising consensus that there have been excesses and that the surveillance programs have gone too far.

It is possible to believe both of these things. In fact, the president clearly believes both of these things and is simultaneously maintaining that Snowden should be subject to prosecution and that, now that we know, we should be reining in and scaling back.

JOEL SIMON: Yeah. That’s all weird.

Actually, if I can turn the tables a little bit, this is something that you dealt with in the foreword that you did to the book Attacks on the Press, which is: What is the role of the press in covering this issue and what is the responsibility of government?

Your focus, your concern, is on accountability and oversight more than the activities that were carried out, correct?

JACOB WEISBERG: Yes. Well, I think it’s a legitimate issue what the limits on surveillance should be. I certainly would not take the position that the NSA should be doing nothing and should not try to have access to encryption systems and gathering some data. The question is what those limits are.

And, if there is no public knowledge, there cannot be any democratic discussion or deliberation about where the limits should be. So essentially, pre-Snowden the public knew more or less nothing, and in fact much of the government, Congress knew nothing, and so you had no practical democratic oversight and no real Congressional oversight.

I think Snowden has gone a pretty long way toward correcting that problem. We don’t know everything about the program, but we have a pretty good idea. We know much more than anybody could have imagined about the details of what the NSA was doing. Congress has woken up and it has permitted a more open discussion there about what the limits should be. There is reform. The president has proposed a series of reforms. He appointed a five-member commission, which made a series of recommendations, some of which he took. There is legislation that passed the House Judiciary Committee yesterday.

So from my point of view, this crime that Snowden committed—and it pretty clearly was a crime—has produced a largely positive outcome, which is that we now have the makings of some accountability around this program.

JOEL SIMON: So are you as conflicted as the president or slightly less conflicted? In this equation you obviously think there has been a benefit, but you also think there is a crime that has been committed. So how do you reconcile those two things or, maybe, what advice do you give to the president about how he should reconcile them?

JACOB WEISBERG: It’s not up to me. I certainly would be in the pardon Snowden camp, because I think the consequences of what he did have been very positive, even though I wouldn’t defend his actions, partly because I don’t think he exhausted the available alternatives for creating internal review.

JOEL SIMON: I think the worst thing he did was end up in Russia. Let’s agree to that. We have seen him, hopefully inadvertently, be a useful tool for Putin, which in my mind is really unforgivable, given his role.

JACOB WEISBERG: Yes. But I’m not sure there was a good way to do it. There were a variety of possible bad ways.

What I have been very impressed with is the way the responsible establishment press has handled his story, starting with The Guardian and The Washington Post and The New York Times and some of the other international outlets that have had access to some of the material.

I think they have done—as far as it is possible to know—a very credible job of reviewing what they should release and subjecting it to a kind of standard around is there a threat of physical harm to people from the information; would some of this information be helpful to terrorists and not relevant to public decision-making?

JOEL SIMON: So is the Snowden/Greenwald nexus the anti-Manning/Assange, the counterweight? The argument in that case was you had someone leaking information essentially willy-nilly, wholesale, to someone who didn’t share the ethical framework of journalists. So some people think a lot of damage was done as a result and it was less positive… MORE

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