In 1999, Amartya Sen argued that the health of a country could be determined by examining the health of its press.  One metric of the fitness of a country’s press is the safety of its journalists and their freedom from surveillance. To bring awareness to these issues, the UN marked its third annual International Day to End Impunity for Crimes Against Journalists on Wednesday. While the United States remains one of the best countries for journalists to work, recent events — from the Trump campaign to new surveillance tools — indicate that problems previously seen abroad are on the rise here at home.

The UN chose the Nov. 2 date for End Impunity Day to commemorate the assassination of two French journalists brutally shot to death in Mali in 2013. Today, according to statistics from the International Federation of Journalists, 68 journalists have been killed since the beginning of this year while carrying out their duties, but only one out of 10 killings is investigated. 

But threats to journalists and their work can be far more subtle. In his fourth report, issued in September, UN Special Rapporteur David Kaye underscored the growing problem of surveillance of the public as well as the safety of journalists reporting on political unrest and activism. “In the context of protests, it is common for journalists to be detained and prohibited from reporting,” he writes.

After mentioning cases in Egypt, Venezuela, and Mexico, where journalists were charged or detained for reporting on demonstrations, Kaye cites an incident in the United States where four journalists, reporting on the Black Lives Matter movement were assaulted and detained by police in Ferguson, Missouri. While this case appears minor compared to the many other violent attacks highlighted in the report (including the Maguindanao massacre in the Philippines), the citation reminds readers that journalists in the United States are not free from harm.

Even though this clash with journalists reporting on activism is alarming, it is not a unique occurrence in the United States. Scores of journalists were arrested during the Occupy Wall Street Movement, and several were arrested just this week during the North Dakota pipeline protests. In fact on Nov. 3, journalist and activist Erin Schrode was shot by police with a rubber bullet while conducting an interview. One reporter, who was arrested at Standing Rock, told the Guardian, “I’ve covered conflicts overseas, and I never imagined I would see this kind of show of force against peaceful people …This is the kind of thing you see in the Middle East.”

While violence and detention are the traditional methods used to intimidate journalists, new surveillance tools, increasingly used to monitor activists, are becoming a more common worry for journalists as well.

A recent report published by the ACLU of California details (via documents obtained through freedom of information requests) how law enforcement has been surveilling activists through technology that tracks social media accounts, such as Facebook, Twitter, and Instagram. While the ACLU explains how these programs (like Geofeedia and MediaSonar) are used to “target activists of color,” the documents also suggest that journalists’ information may be captured in the surveillance dragnet. For instance, in Geofeedia’s promotional information, the company explicitly showcases in its example for “social media posts from the scene of protests in Ferguson, Missouri” a screengrab of Twitter feeds from reporters @CaseyNolen (a reporter for KSDK news), @DonGalloway (a reporter for KSDK news) and @MzzzMariah (a reporter currently at Huffington Post). This example is particularly worrisome as journalists are increasingly using social media and other online tools to investigate and contact sources.

Even though this revelation uncovers a mere potential use of technological tools, other methods to surveil journalists are not so hypothetical.

  • Exigent Letters: A 2010 Department of Justice Inspector General report criticized procedures, called exigent letters, previously (but no longer) used by the FBI to obtain telephone toll records from three news agencies, including The Times, the Washington Post, and an unnamed outlet. It characterized, “[T]he FBI’s acquisition of these records” as “a complete breakdown in the required Department procedures” and a “serious abuse of the FBI’s authority.” 
  • Guidelines: In 2013, the Justice Department came under intense public scrutiny for various surveillance tactics used on reporters at Fox and the Associated Press. In response, the Justice Department revised its media guidelines for investigating the press, which have existed for more than 40 years, and had served as an important protection for journalists. While the guidelines were intended to help reporters, the new revision, published in 2015, made a procedural exception for additional tools in investigations involving national security.
  • National Security Letters (NSLs): A seeming exception to the Guidelines surfaced this year after an ongoing Freedom of Information Act suit brought by the Freedom of the Press Foundation (“FPF”), where FPF sought the FBI’s procedures for use of National Security Letters to obtain information about reporters. After the agency released a redacted version of the FBI’s procedures, the Intercept more recently published an unredacted version. While there are no official reports of law enforcement using NSLs on journalists (no doubt, in part because of the gag orders attached to the legal mechanism), a Washington Post reporter has stated that he was told his records were obtained through the method.
  • Impersonation Procedures: More recently, yet another of the FBI’s surveillance procedures came into focus when documents revealed an agent had obtained permission to impersonate a journalist in order to conduct an investigation. While not seemingly used to obtain information about journalists, the tool disturbs the sacrosanct trust between journalists and their sources.

While FBI Director James Comey wrote that the impersonation procedures used by the Bureau are “subject to close oversight, both internally and by the courts that review our work,” concerns persist that surveillance tools like these tend to chill speech and deter sources.

In fact, in recent years, several reports have shown how surveillance programs unveiled since the Snowden revelations have been immensely detrimental to journalism. A 2013 study by the Committee to Protect Journalists, based on interviews with journalists, editors, and government officials, revealed a “startling picture of the deteriorating state of press freedom.” The following year, Human Rights Watch and the ACLU issued a report documenting how sources, particularly government officials involved with national security, are less willing to speak to reporters. And just this past year, an international study reported that concerns over surveillance by American officials has negatively impacted journalists in other countries in addition to those at home.

While the practical effects of surveillance techniques are troubling on their own, Kaye’s report also highlights the legal concerns over surveillance methods. Under domestic law, there is no federal statutory privilege for journalists, so Kaye’s international report focuses on Article 19 of the Universal Declaration of Human Rights, which requires the state to demonstrate the “legality of the techniques” and “that the tools chosen to achieve a legitimate objective are necessary and proportionate.”

Despite legal concerns, proposals for other surveillance tactics continue to percolate. Recently, the Department of Homeland Security has proposed a new method for tracking social media accounts of particular persons entering the country (that has the potential to target journalists). Similarly, local law enforcement has begun using persistent surveillance systems that use high resolution video to track individuals across an entire city. The idea that surveillance tools may be used on a journalist are not far-fetched, as can be seen by the recent example of three Canadian journalists whose iPhones were monitored by the Montreal police department.

And while the need for some law enforcement surveillance techniques is no doubt necessary, these techniques arise at a time when there is a growing distrust of the press in the United States, a feeling that Donald Trump has exploited on his presidential campaign. Further undermining the news media, private citizens have even engaged in using libel laws to literally bankrupt the press.

However, all is not lost. Journalists are increasingly being taught various techniques to protect sources and other confidential information—such as using high-end encryption tools like PGP or SecureDrop, and even abandoning online communication altogether to meet sources in person.  In the recent Standing Rock example, citizens across the globe are using even more subversive techniques by “checking in” on Facebook in an attempt to confuse local law enforcement, which may be theoretically surveilling the site.  

The concerns and potential surveillance faced by journalists in the United States pales in comparison to the life-threatening dangers posed to reporters in other countries. But if we seriously consider these bellwether events in light of Sen’s theory, we might still ask: Can we improve the state our free press?

Photo: UN/Violaine Martin