Wikileaks and Snowden,how to deal with classified sources_Abela, Limongelli_NewMediaLit_Bratislava, Slovakia

Leonardo da Vinci Project 2012-2014:New Media Literacy for Media Professionals

Partners: SKAMBA (SK), Media21Foundation (BG), FOPSIM (MT) and Videovest (RO).

This presentation was prepared by FOPSIM and is free to use under condition of acknowledging authorship

WikiLeaks and Snowden:

How to deal with Classified

Sources?Abraham AbelaMaria Limongelli





How to deal with Classified Sources?





How to deal with Classified Sources?

• News-gathering procedures conflict with the law

• Journalists get to determine whether the reason for the disclosure of information is good

• When is whistleblowing legitimate?

WikiLeaks




WikiLeaks




WikiLeaks




A still image from a video depicting the killing of 12 people, including two Reuters employees, by the U.S. military in 2007. The video was released by WikiLeaks in 2010

“Everyone has the right to freedom of opinion and expression; this right includes freedom to hold opinions without interference and to seek, receive and impart information and ideas through any media and regardless of frontiers.”




The effect of WikiLeaks

The effect of WikiLeaks

Confidential space for diplomatic conversations and serious threats to the national security




Obstacles to transparency

• Concerns regarding security and terrorism

Restrictions are spreading through international institutions such as the EU




Obstacles to transparency

• CoE 2008 – European Convention on Access to Official Documents

• Ratified by Bosnia and Herzegovina, Hungary, Lithuania, Montenegro, Norway and Sweden

• Not in force yet




Freedom of Information Acts

.





Bulgaria - one Access to Public Information Act, that applies to state as well as local bodies




Bulgaria -




BULGARIA

the ruling in the case

Zoya Dimitrova vs. the Secretary of the President of the Republic of Bulgaria

“the goal of the Protection of Classified Information Act is to protect

data regarding the operative work of the security services. The administration's attempt to include in that category the results of those reports was

disproportionate to the purpose of the law. In that respect, also, the court ruling stated that the quoted category of information, subject to classification

as state secret under the PCIA, is not applicable“








Romania - free access to public interest information and transparent decision making processes in public administration in 2001





The meThe media and civil society embraced the law

and have used its provisions to create positive legal precedents, good practices,

and monitoring tools”





Slovakia - free access to public interest information in 2000.

Under the law, everybody can demand information

Slovakia and classified info




The weekly argued that decision to publish this secret information was based on concept of ‘public interest’ and thus it was according to the Code of Ethics. Therefore, argued the editor, the public interest was above the law on state secrets which, however, states specific rules on how to proceed in case somebody finds a classified information.

Freedom of Information - Slovakia




CONSTITUTIONAL PRINCIPLES1) information which public authorities are obliged to provide to relevant persons

2) information which public authorities may not give to those who request them but must make available access to them, should they have interest,

3) information which is forbidden to be made public due to protection

Freedom of Information - Slovakia




The Case of the Ministry of Agriculture

The Supreme Court accepted that the request for information addressed to the MA

– to provide a complete list of legal and natural persons who received state support from the MA in the period 1996–2003 – was

justified.

Freedom of Information - SK




SC: “even though the authority does not possess information at the moment of submitting a request for information, it is impossible to argue that the authority does not possess information at all and thus to try to avoid the duty to make public such information’”.

Furthermore: “it cannot agree with the opinion that the plaintiff should ask for such information directly from tax authorities because the plaintiff can ask any legal subject, or state authority, if such legal person possesses this information”.





Malta – Freedom of Information Act in 2012

Public can submit requests for information held by the Government





EU: ACCESS TO DOCUMENTS

European Court of Justice, 2013: in favour of greater transparency of the Council of the EU

Three-part test

A limitation to the right of access to information is only permissible when it is:

explicitly prescribed by law;proportional to the purpose of protecting one or more

of the legallyprescribed interests;

necessary in a democratic society

Freedom of Information







necessity in a democratic society

1) It is to a degree proportional to the protection of the listed interests2) Provision of the information will harm or may harm the protected interests,3) There is no overriding public interest in the disclosuresclosure.

The essential point of departure is a recognition that classification of national security information is a subjective process, not a rigorously objective one.

“There appears to be no common understanding of classification levels… nor any consistent guidance as to what constitutes ‘damage,’ ‘serious damage,’ or ‘exceptionally grave damage’ to national security.” “There is wide variance in application of classification levels.”

Classified Information




Handling Classified Information

• Approved custodian of classified information responsible for the protection and control

• Information must be safeguarded at all times

• Loss or compromise and unauthorised disclosure, dissemination or duplication are punishable




Handling Classified Information

• A security officer or supervisor gives a briefing on the specific rules for handling classified information




Standard Procedures

• Classified information not safeguarded shall be constantly under the control of a person having the proper security clearance

• An end-of-day security to ensure that all classified material is properly secured




Standard Procedures

• Classified material left unattended, your responsibility to ensure its protection

• Stay with the classified material and notify the security office

• If not possible, documents must be taken to the security office, a supervisor or a person authorized access to that information




Standard Procedures

• If not, material should be locked in your own safe overnight

• Classified material must not be taken at home

• It shall not be disposed of in waste basket• Moreover, the information must be placed

in a designated container for an approved method of destruction, such as shreddingLeonardo da Vinci Project 2012-2014:

New Media Literacy for Media ProfessionalsPartners: SKAMBA (SK), Media21Foundation (BG),

FOPSIM (MT) and Videovest (RO).This presentation was prepared by FOPSIM and is free to use under

condition of acknowledging authorship

Standard Procedures

• Before sending an email, posting to a bulletin board, publishing anything on the internet or adding to an existing web page, you must be absolutely certain that none of the information is classified or sensitive




Standard Procedures

• You must be familiar with your organisation's internet policy – many organisations require prior review of any information put on the internet

• Classified working papers: dated, marked with overall classification and with the annotation “Working Paper”




Standard Procedures

• Computer diskettes, magnetic tape, CDs, carbon paper and used typewriter ribbons may pose a problem when doing a security check

• Some offices treat such items as classified even if they not necessarily contain classified information




Edward Snowden




The Snowden Story

• 200,000 leaked documents uncovered a number of global surveillance programs

• Cooperated by telecommunication companies and European governments

• 2013 – Boundless Informant, PRISM, Xkeyscore, Tempora, MUSCULAR and FASCIA




The Snowden Story

• 2014 – Joint Threat Research Group, Dishfire, Squeaky Dolphin and Optic Nerve

• Snowden’s motive – “to inform the public as to that which is done in their name and that which is done against them”




Surveillance programs uncovered

• Boundless Informant – gives NSA managers summaries of the NSA’s world wide data collected

• PRISM – collects stored Internet communications based on demands made to Internet companies, such as Google

• XKeyscore – search and analyse Internet data collected worldwide everyday





• Tempora – uses intercepts on the fibre-optic cables that make up the backbone of the internet to access large amounts of internet users’ personal data

• MUSCULAR – a surveillance program that breaks into the main communication links that connect Yahoo! and Google data centres and collects millions of recordsLeonardo da Vinci Project 2012-2014:





• FASCIA – database that contains trillions of device-location records collected from various sources

• JTRI Group – uses tricks to disrupt and destroy enemies by discrediting them, planting misinformation and shutting down their communications





• Dishfire – collects millions of text messages daily from around the world

• Squeaky Dolphin – collect and analyse data from social media networks

• Optic Nerve – collects private webcam still images from Yahoo! Webcam application users




Surveillance programs Uncovered - Impact




“The scope of the compromised knowledge related to US intelligence capabilities is staggering”

The government will almost certainly have to spend billions of dollars, and thousands of people will have

to spend thousands of hours, reworking security procedures

Surveillance programsUncovered - Impact




• Re-thinking how to effectively encrypt most sensitive data

• Less business with U.S. companies, since the NSA has direct backdoors into many of them.

• The brakes are being put on cloud computing by some organizations

Journalists and Classified Information

United States v. Rosen, 2006

Two journalists threatened to be prosecuted for receiving classified information and passing it on

to others

U.S. authorities used an affidavit as legal means to search a journalist’s private emails after he

published classified national defence informationLeonardo da Vinci Project 2012-2014:





In the Pentagon Papers case, the US Supreme Court held that “although elected officials have broad authority to keep classified information secret, once that information gets into other hands, the government has only very limited authority to prevent its further dissemination”








Journalists and Not for Public Information

Bartnicki v. Vopper, 2001

The U.S. Supreme Court ruled that “even though an unknown person intercepted the call illegally, the media organizations were not liable for their decision to broadcast the contents of the conversation to the world”








“It would be quite remarkable to hold that speech by a law-abiding possessor of information can be suppressed in order to deter conduct by a non-law-abiding third party,” US Justice John Paul Stevens said for the majority.





Smith v. Maryland, 1979 “All telephone users realize that they must "convey" phone numbers to the telephone

company, since it is through telephone company switching equipment that their calls are

completed. All subscribers realize, moreover, that the phone company has facilities for making permanent records of the numbers they dial”





GUJA v. MOLDOVA, 2008

• The right to report illegal conduct and wrongdoing at work, the duties and

responsibilities of employees towards their employers, and the right of employers to

manage their staff





CRITERIA: Alternative channels for the disclosure

•The public interest in the disclosed information

• The authenticity of the disclosed information

•The detriment to the Prosecutor General’s Office

•Whether the applicant acted in good faith

•The severity of the sanction





Grigory Pasko v. Russia, 2009

The Court observes that the applicant was convicted that as a serving military officer, and not as a journalist, of treason through espionage for having collected and kept, with the intention of transferring it to a foreign national, information of a military nature that was classified as a State secret.




Bucur & Toma v. Romania, 2013

Criminal conviction for making public irregular telephone tapping procedures

The telephones of a large number of journalists, politicians and businessmen were tapped,

especially after some high-profile news stories received wide media coverage





The general interest in the disclosure of information revealing illegal activities within the Romanian Intelligence Service was so important in a democratic society that it prevailed over the interest in maintaining public confidence in that

institution






The applicant’s motive was to make a public institution abide by the laws of Romania and in

particular the Constitution. Supported by the fact that he had first turned to a member of the parliamentary commission responsible for

supervising the RIS



QUESTIONS• Should Government/Judiciary punish someone for

reporting on classified information that someone else has gathered illegally?

• Where is the thin red line between espionage and journalism in a new online environment?

• Do journalists facilitate or co-conspire when they ask a source to provide information that the journalist knows is classified? When is the line crossed when the journalist asks for specific classified documents?




Wikileaks and Snowden,how to deal with classified sources_Abela, Limongelli_NewMediaLit_Bratislava, Slovakia

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