"From changes in the legal system to the ever more sophisticated electronic surveillance devices, the playing field has shifted against investigative journalism.

Journalism  schools are not preparing students for this new reality.


Are You Paranoid Yet?

>> There are few things more rewarding than knowing that an investigative piece you did as a journalist resulted in some wrong being addressed and fixed.

For one thing, you feel that the world is a slightly better place because of your effort.

Then there is the added possibility of accolades and occasionally even such things as Pulitzer Prizes. 

But, more than ever before, there are also pitfalls, even demonstrated personal dangers.

>>Although no U.S. official wants to be publicly viewed as being against freedom of the press or freedom of speech, behind the scenes there are those who have been chipping away at our constitutional freedoms.

 >>Do the names Eliot  Spitzer (former New York State Attorney General), or General David Petraeus, (former CIA chief), ring a bell?

The word "former" is significant, because despite their best efforts to hide what they were doing (and whatever you might think of them), U.S. eavesdropping brought them down.

>>It used to be that only conspiracy theorists and paranoid personality types were constantly looking over their shoulders (if not behind every bush) because they feared someone was out to get them.

"Since President Obama took office, federal authorities have filed seven leak-related criminal cases under the Espionage Act.... That's more than all pervious administrations combined."

>>With the record-setting number off journalists being  interrogated and threatened, based on the "almost anything is allowed" Patriot Act and Foreign Intelligence Surveillance Acts responsible journalism educators are calling for a new level of vigilance in J-school education.

>>Dr. Edward Wasserman, dean of the journalism school at UC-Berkeley, recently wrote in The Miami Herald :

  • "The NSA is estimated to have intercepted 15-20 trillion communications in the past decade -- the secrecy police have vast new ways to identify leakers.

  • So they no longer have to force journalists to expose confidential sources. As a national security representative told Lucy Dalglish, director of the Reporters Committee for Freedom of the Press, 'We're not going to subpoena reporters in the future. We don't need to. We know who you're talking to.' "

>>If you don't plan to reveal government or corporate secrets, or you don't have a friend that turns out be be a spy for some foreign government, you might think you have nothing to worry about.

Not necessarily.

Keep in mind that even what you put on your Facebook page or what you e-mail someone "in private," can trip you up at some point.

>>What should documentary producers keep in mind?

First, assume that everything you say or do can become known at some point. Even if some third party is not eavesdropping on you, the person you are talking to could at some point be legally required to reveal conversations.

Second, know that there is a record of everything spoken on a phone and everything written in e-mails and text messages. (Remember the 15-20 trillion communications quote earlier?)

>>You probably assumed there were laws on the books designed to protect you.

There are laws but they are not necessarily designed to protect you. For example, the intent of CALEA (the  Communications Assistance for Law Enforcement Act of 1994) is to make clear a telecommunications carrier's duty to cooperate in the interception of communications for law enforcement purposes.

In other words, telecommunications carriers, which handle all forms of electronic communication, can be required to turn over all legally requested intercepts -- the word, legally is open to interpretation -- to federal, state and local law enforcement representatives.

They can go to a phone service provider such as AT&T or Verizon, and ask for stored text messages and data transfers including photos. They are kept in their files for an indeterminate length of time.

Recent revelations indicate that it may not be necessary to go to these service providers after the fact because the intelligence agencies can now get and record direct communication from points around the world in real time.

Once this is done the material can be searched with super computers at lightening speed and correlated with other messages in their vast data base.

It also appears that, depending on the state, law enforcement officials can simply confiscate your cell phone and without the need for a warrant download records of all of your contacts and call logs.

Trying to erase them beforehand will probably not work because even after you erase this data, it can, with the right equipment, be retrieved from your phone.

>>Think you are safe from "off shore" monitoring?

People have made that mistake too. There is evidence that United States cloud computing companies with operations in Europe regularly get requests from U.S. law enforcement agencies to turn over intercepts under the U.S. Patriot Act.

Are you paranoid yet?

"After computers and telephones of major news centers, including The New York Times, The Washington Post, the Associated Press and Fox News were hacked, some journalists have asserted that when you are working on a sensitive story you are not being overly paranoid if you operate as if you are living in a third-world dictatorship or even in the climate of Stalinist Russia."

This seems like a dramatic overreaction until you read about the cell phones that have been confiscated without warning and without a warrant and the laptop computers perused for information by officials at airports.

Since even reporting such things can be against the law, we have no idea of how often this takes place -- only that it does.

After your confidential data is seized, information on a story you were working on, including your sources, is no longer confidential.

This means you have given your source -- the one you said you would protect -- justifiable cause for not trusting you.

Once that happens it means that fewer people will trust you, and without that trust your sources can dry up -- along with your future in investigative journalism.

So what can you do?

Here are some things to think about in trying to protect the confidentiality of your information.

Passwords are a definite weak spot in personal security. We have an article elsewhere on this site that covers that. You might want also want consider the next section on that page, "When You Delete Data It's Still There."

Data Encryption.  A good primer for beginners wanting to use the most famous (and one of the best) encryption programs, PGP, can find a beginner's primer at the University of Pittsburgh web site.

Another approach is with programs such as Seecrypt, a mobile encryption approach that can be used with Apple and Android phones. Seecrypt is a simple and inexpensive end-to-end encrypted messaging system that changes keys with every message sent.

However, even though the messages may not be able to be read by a third party, the fact that you are sending and receiving encrypted messages may, in itself, call attention to you and the locations involved.

Recently, it was reported that there has been a breakthrough in unscrambling even heavily encrypted data. The who-how-where-when of this is heavily classified.

Use Disposable Cell Phones If you have reason to think that the story you are working on can endanger you or your source consider using disposable cell phones for your communication.

Since the law has not jelled on the legality cell phone tracking, if you don't want your location revealed (which can easily be done with readily available apps), turn off your regular cell phone. 

Finally, if at all possible, meet sources in person. Ideally, use the "walk and talk" procedure. Also set up meeting times and places in person.

Keep in mind that you could be required at some point to turn over any notes or recordings you make in doing a story.  In an effort to trace sources of information reporter notes and computer hard drives have been seized from newsrooms.

>>Although a definite case can be made for the need to delve into personal communications in the cause of national security, claiming that "need" has been used to block legitimate press investigations into political coverups and government malfeasance. The article, Whistleblowing vs. Leaking, has some examples.

>>Although no protections are foolproof, with the tightened effort to stop reporters from doing perfectly legal and even badly needed stories based on whistleblower information, keeping these things in mind may help you and your sources sleep a bit better at night.

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