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Government’s “Anti-leak” Measures Attack Privacy and the Press

Sandra Fulton,
ACLU Washington Legislative Office
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August 24, 2012

Although the conflict between government classification rules and practices and the First Amendment rights necessary to promote a free and open society is nothing new, recent developments may indicate an alarming shift away from basic First Amendment principles.

A recent article by the Washington Post showed surveillance of federal employees has been stepped up government-wide. According to the article, last year the Food and Drug Administration (FDA) began spying on its scientists, claiming to be looking for the unauthorized sharing of trade secrets. The scientists, however, claim they were being targeted for blowing the whistle on an unethical review process. According the story, such invasive surveillance in the name of national security is spreading. The spyware sold by one software company, SpectorSoft–which claims to have clients in dozens of federal agencies–can do far more than just spy on email. According to the Post, “It could be programmed to intercept a tweet or Facebook post. It could snap screen shots of their computers. It could even track an employee’s keystrokes, retrieve files from hard drives or search for keywords.”

Such agency-level efforts to punish transparency are alarming, and are part and parcel of a larger public debate over national security “leaks.” Supposedly prompted by similar communications with the media in the intelligence community, the Senate Intelligence Select Committee inserted an “anti-leaks” provision into next year’s intelligence authorization bill. Unfortunately, while the misguided provision violates freedom of speech and the press, eliminates basic due process rights for government employees, and hamstrings Congress’s oversight role in monitoring the conduct of our intelligence agencies, it’s likely to be ineffective in guarding against the kind of leaks that actually impact national security (namely the disclosure of properly classified information to hostile foreign powers, which rarely, if ever, occurs through the media).

The measure contains two provisions that would severely limit the media’s access to government officials, and would restrict Congress’s and the public’s access to information about U.S. policies and conduct in the areas of national security and foreign affairs.

First of all, it limits the individuals in the intelligence community who may speak to the press on “background” or “off-the-record” regarding “intelligence activities” generally to the director, deputy director, and designated public affairs officials of any intelligence agency. These conversations, which are routinely held with officials at all levels actually help journalists already privy to sensitive classified information gauge the accuracy of the information and determine if there is any risk in disclosure, would be outlawed if they involved anyone other than these designated officials. The bill makes no exception for whistleblowers so even those trying to expose government fraud, waste, abuse or illegality—such as the FDA scientists, were they part of the intelligence community—would be in violation when acting in the public interest.

Second, the legislation would ban current government employees with active security clearances or former officials who have held top secret clearances within three years before leaving from entering into a contract or other “binding agreement” (which is undefined and could cover even informal agreements) with the media that would involve providing analysis or commentary on matters concerning classified intelligence activities. This gag order would deny the media and the American public access to individuals who are most able to inform the American public about the complicated and crucial policy dimensions of our national security and foreign affairs.

Media’s access to the government is the cornerstone of a free society and an informed electorate. The restrictions in this bill could have–were this regime in place—denied the American public the revelations of the Pentagon Papers; the Watergate scandal; and the crimes of torture, extraordinary rendition, and secret prisons, as well as NSA warrantless wiretapping, post 9/11.

The trend in agency-level leak detection, prevention, and punishment is cause for alarm. Federal employees’ rights to privacy are being eliminated while the restrictions in the Senate Intelligence Authorization Bill are both a frontal attack on freedom of the press and a potentially radical limitation on the public’s ability and right to access information about government affairs. National security must be protected and properly classified information must be kept safe. However, this cannot be at the expense of a free, open and informed society.

The ACLU sent a letter to each member of the Senate detailing our concerns. The letter can be found here.

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