More Evidence for the Chilling Effects of NSA Surveillance

Cindy Cohn
Electronic Frontier Foundation

Human Rights Watch and the ACLU today published a terrific report documenting the chilling effect on journalists and lawyers from the NSA’s surveillance programs entitled: “With Liberty to Monitor All: How Large-Scale US Surveillance is Harming Journalism, Law and American Democracy.” The report, which is chock full of evidence about the very real harms caused by the NSA’s surveillance programs, is the result of interviews of 92 lawyers and journalists, plus several senior government officials.

This report adds to the growing body of evidence that the NSA’s surveillance programs are causing real harm. It also links these harms to key parts of both U.S. constitutional and international law, including the right to counsel, the right of access to information, the right of association and the free press. It is a welcome addition to the PEN report detailing the effects on authors, called Chilling Effects: How NSA Surveillance Drives US Writers to Self-Censor and the declarations of 22 of EFF’s clients in our First Unitarian Church of Los Angeles v. NSA case.

The HRW and ACLU report documents the increasing treatment of journalists and lawyers as legitimate surveillance targets and surveys how they are responding. Brian Ross of ABC says:

There’s something about using elaborate evasion and security techniques that’s offensive to me—that I should have to operate as like a criminal, like a spy.

The report also notes that the government increasingly likens journalists to criminals. As Scott Shane of the New York Times explains:

To compare the exchange of information about sensitive programs between officials and the media, which has gone on for decades, to burglary seems to miss the point. Burglary is not part of a larger set of activities protected by the Constitution, and at the heart of our democracy. Unfortunately, that mindset is sort of the problem.

Especially striking in the report is the disconnect between the real stories of chilling effects from reporters and lawyers and the skeptical, but undocumented, rejections from senior government officials. The reporters explain difficulties in building trust with their sources and the attorneys echo that with stories about the difficulties building client trust. The senior government officials, in contrast, just say that they don’t believe the journalists and appear to have thought little, if at all about the issues facing lawyers.

Thanks to ACLU and HRW for adding the important faces of journalists and lawyers to the growing list of people directly harmed by NSA surveillance.