July 28, 2014

With Liberty to Monitor All

How Large-Scale US Surveillance is Harming Journalism, Law, and American Democracy

Summary
Revelations of Large-Scale Surveillance
Impact of Surveillance on Journalists
Impact of Surveillance on Lawyers
Uncertainty and Secrecy
Methodology
I. Background: US Surveillance, Secrecy, and Crackdown on Leaks
Legal Authorities Governing Surveillance
Surveillance under Section 215 of the PATRIOT Act
Surveillance under Section 702 of FISA
Surveillance under Executive Order 12,333
Privacy Protections under Existing US Surveillance Programs
Minimization Procedures
The Current Surveillance Debate
The Broader Context: Government Secrecy and the Crackdown on Leaks
Over-Classification
“Insider Threats”
Limiting Intelligence Officials’ Contact with the Media
II. The Impact of Surveillance on Journalists
Losing Sources
Changing Journalistic Practices
Advanced Privacy and Security Technology
Decreasing Reliance on Digital Technology
Other Strategies to Protect Sources
Ongoing Uncertainty about Security
Impact on News Coverage, Public Accountability, and the Quality of Democratic Debate
Impact on News Coverage
Impact on the Press’s Ability to Serve as a Check on Government Abuse
III. The Impact of Surveillance on Lawyers and Their Clients
Uncertainty and Confusion among Lawyers over How to Respond to Large-Scale US Surveillance
The Implications of Surveillance for the Professional Responsibilities of Lawyers
Damage to Attorney-Client Trust
Impact on Attorneys’ Ability to Effectively Represent Clients
Changing Legal Practices
IV. The Government’s Rationale for Surveillance
The Lawfulness of Current Surveillance Programs
Whether the Programs Are Necessary for National Security and Sufficiently Targeted
Whether the Programs Have a Chilling Effect on the Rights of Journalists, Lawyers, or Others
The Impact on Journalists
The Impact on Lawyers and Their Clients
What the Government Should Do
V. The Rights at Stake
Rights Affected by Surveillance’s Impact on Journalists
International Human Rights Law and Standards on Freedom of Expression, Association, and Access to Information
US Constitutional Law
Rights Implicated by Surveillance’s Impact on Attorneys
International Human Rights Law and Standards
US Constitutional Law
Recommendations
Narrow the Scope of Surveillance Authorities:
Strengthen the Protections Provided by Targeting and Minimization Procedures:
Disclose Additional Information about Surveillance Programs to the Public:
Reduce Government Secrecy and Restrictions on Official Contact with the Media:
Enhance Protections for National-Security Whistleblowers:
Acknowledgments
Appendix