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October 2017

The Press and National Security: Redux

By Jay Ward Brown, Dana R. Green and Gill Phillips*

BACKGROUND RESOURCES

I. Background law: Publication of National Security information

A. Summary of key principles in U.K. Law

The principle U.K. statutes relating to official secrecy and publication of classified information are: Official Secrets Act 1911, 1920, 1989 (“OSAs”).

Main offences

The first Official Secrets Act was enacted in 1889. The OSA 1911 replaced this. This was enacted shortly after Germany sent a gunboat to Agadir, Morocco in July 1911 on the pretext of protecting a German colony. Section 1 of the 1911 Act[1] relates to “obtaining, collecting, recording, or publishing” “secret official code words . . . or . . . article, or note, or other document or information which is calculated to be or might be or is intended to be directly or indirectly useful to an enemy.” Section 2 OSA 1911 was about the wrongful communication of information. It was extremely wide. Geoffrey Robertson (in Freedom, the Individual and the Law (7th Edition, 1993, at p 159)) said it made it a crime “to reveal even the number of cups of tea consumed each day in the MI5 canteen.” After much criticism, especially after the failed prosecution of Clive Ponting in 1995, (see below) section 2 was repealed and replaced with the 1989 OSA.

Section 1 of the 1920 Act relates to the unlawful retention or possession of official documents.

Sections 1-4 of the 1989 Act prohibit disclosure (which means “part possession with” not make public) by former or current Crown servants, government contractors, or members of the security and intelligence services (or otherwise officially notified persons) of security and intelligence material. Material relating solely to foreign (i.e., non-U.K.) security/intelligence services is outside the scope of s.1 (defence material). Material relating solely to foreign (i.e., non-U.K.) defence-related matters is outside the scope of s.2 (international relations material). Information damaging to or relating only to the national security of a foreign country may, depending on its precise content, fall within s. 3. “International relations” is defined in section 3(5) as “the relations between States, between international organisations or between one or more States and one or more such organisations and includes any matter relating to a State other than the United Kingdom or to an international organisation which is capable of affecting the relations of the United Kingdom with another State or with an international organisation.”

Mere receipt of prohibited material received directly or indirectly as a result of an illegal disclosure is not an offence. Damaging disclosures are defined in s. 1(4), s. 2(2) and s. 3(3).

In addition, sections 5 and 6 OSA 1989 also create offences relating to secondary disclosure – that is, the further dissemination, by journalists and others, of information obtained as a result of a primary disclosure. Section 5 criminalises onward disclosure of any material falling within sections 1-4 that has been received via a chain, that includes passing through the hands of a former or current Crown servant, government contractor, member of the security and intelligence services, or officially notified person. The effect of section 5 is that where a third party comes into possession of information either directly or indirectly as a result of an unauthorised disclosure, that third party may be guilty of an offence if he further discloses it. Section 5 applies to any information, document, or other article that is protected against disclosure by sections 1-4. A person is not guilty of an offence under s. 5 unless (a) the disclosure is damaging and (b) he or she makes it knowing, or having reasonable cause to believe, that it would (not might) be damaging.

Section 6 OSA 1989 criminalises the onward disclosure by anyone of specified restricted material that is received (directly or indirectly) from a foreign state or international organisation in the described circumstances. A person is not guilty of an offence under s. 6 unless (a) the disclosure is damaging and (b) he or she makes it knowing, or having reasonable cause to believe, that it would be damaging.

The Official Secrets Act 1989 contains no express public interest defence.[2] Where the offence requires proof of harm (as in sections 5 and 6) the public interest in disclosure is relevant to an assessment of the likelihood that a disclosure would be damaging.

The 1989 OSA imposes criminal penalties for unauthorised disclosures by current and former public employees as well as for non-employees. All the major offences under the OSA are punishable with a maximum term of two years imprisonment and/or an unlimited fine.

B. The OSAs In Practice

OSA prosecutions are pretty rare and have tended to focus on the leaker not the journalist:

Under OSA 1911

a. There have been a number of prosecutions under the 1911 Act for what might be described as classic acts of espionage, including George Blake (1962)[3], Geoffrey Prime (1983)[4], Michael Bettany (1984)[5], and Michael Smith (1992)[6];

b. Sarah Tisdall (1984): a former clerical officer at the Foreign Office who anonymously sent The Guardian photocopied documents detailing when American cruise missile nuclear weapons would be arriving in Britain. The UK Government sought an order requiring the Guardian to return the document, which it complied with. The documents were identified as coming from an FCO photocopying machine, which then led to Tisdall, who was prosecuted under s 2 OSA 1911. She pleaded guilty, and was sentenced to 6 months, serving 4. The legality of the Order compelling The Guardian to surrender the documents, was upheld in by the House of Lords[7] by a majority of three to two.[8]

c. Clive Ponting (1985): a senior civil servant who leaked documents to a serving MP, about the sinking of an Argentine war ship, the General Belgrano, in the Falklands War. Ponting admitted revealing the information and was charged under Section 2 OSA 1911. His “defence” was that the matter and its disclosure to a Member of Parliament was in the public interest. Ponting was (unexpectedly) acquitted by the jury.[9]

d. Daniel James (2010): An interpreter for NATO forces in Afghanistan was prosecuted under s. 1 of the OSA 1911 (passing documents to the enemy) for spying on behalf of Iran.[10] His sentence of 10 years’ imprisonment was upheld by the Court of Appeal.

e. Edward Devenny (2012): Royal Navy petty officer who offered nuclear submarine secrets to MI5 agents posing as Russian spies was prosecuted under s 1 OSA 1911 and sentenced to 8 years imprisonment.

Under OSA 1989

f. Richard Tomlinson (1997): ex-MI6 employee who in December 1997 pleaded guilty to and was sentenced to one year’s imprisonment for offences under the OSA 1989 for having sent an Australian publisher a synopsis of a planned memoir-cum-exposé of his work. He served nine months and then was re-arrested under an international warrant in July 1998 in France on the basis of suspicions that he was intending to make damaging disclosures regarding the security and intelligence services. The attempt to extradite him failed. He later travelled to New Zealand, where he was greeted with an injunction obtained by the U.K. government that prevented him from making any security-related disclosures and complemented the injunction already in place in the U.K. In July 2001a UK court granted a permanent injunction against him. This injunction remains in place. In 2007, the CPS announced that it had decided not to prosecute Tomlinson for further alleged offences committed under s 1(1) OSA 1989. The CPS decided that there was not a realistic prospect of conviction. The allegations related to various disclosures of information made variously in newspapers, a book and on the internet.

g. Steven Hayden (1998): a Chief Petty Officer in the Royal Navy, Hayden was jailed for 12 months after he sold secret information to the Sun newspaper for £10,000 for a story about an alleged plot by Iraq’s leader Saddam Hussein to launch anthrax attacks in the UK. Hayden pleaded guilty to disclosing information relating to security and intelligence contrary to Section 1 of the OSA 1989[11].

h. Tony Geraghty (1998): First journalist charged under OSA 1989. The Sunday Times reporter was arrested after a dawn raid at is home and later charged under section 5 OSA 1989 after having published a book that highlighted British surveillance of residents of Northern Ireland. The charges were dropped a year later. No injunction was sought at the time of publication, the Ministry of Defence subsequently conceding (see Guardian 23/12/1999: “Secrets charges against Ulster spy author dropped,”) that the revelations regarding surveillance were “embarrassing rather than damaging”.

i. Ian Hurst (pseudonym Martin Ingrams): former British army soldier arrested under s 1 OSA but never charged over information passed to Sunday Times in August 1999, making allegations about FRU, a section of military intelligence responsible for the handling of agents within loyalist and republican paramilitaries. Was made subject to a civil injunction.

j. Liam Clarke (1999): Clarke, a Sunday Times editor, was detained and threatened with prosecution under s 5 OSA 1989 for articles that included allegations of wrongdoing by an undercover military unit operating in Northern Ireland. No charges laid. The officer who was accused of being his source (see i) was charged under s 1 OSA 1989.

k. Nigel Wylde (2000): retired army officer charged under s 2 OSA 1989 with passing information to Tony Gerahty about surveillance operations in Northern Ireland. The MoD wanted evidence against him to be heard behind closed doors. Evidence showed that the material Wylde was accused of passing to Geraghty was already in the public domain. Some had been contained in a briefcase that was mislaid by an intelligence officer in 1998.

l. Julie-Ann Davies (2000): The volunteer researcher for a comedy program was arrested and questioned under s 5 OSA1989 regarding her communications with David Shayler, then in exile. No charges were ever laid.

m. David Shayler (2003): a former security services officer prosecuted under s.1 for leaking material about MI5 operations. He was given six months’ imprisonment. Separately, in 1997 the UK Gov. obtained an injunction that banned “publication of any information David Shayler acquired by virtue of employment for the security service.” In October 2000, the editor of Punch magazine was found guilty of contempt of court in relation to publication of an article written by Shayler, even though the judge found no evidence to believe that it had harmed national security. In March 2000, production orders against The Guardian and The Observer were issued under s. 9 and sch. 1, para. 2 Police and Criminal Evidence Act 1984 at the request of Special Branch for material held by them relating to Shayler. In particular, Special Branch sought the original of a letter Shayler wrote to The Guardian containing his email address. They also wanted the notes of Martin Bright, a journalist on The Observer who reported that Shayler had named two MI6 officers involved in the alleged plot to kill Gaddafi. An appeal for judicial review of the decision against the Observer, R ex parte Bright, was decided in July 2000. By a majority of two to one, the court quashed all the orders bar one.

n. Katharine Gun (2004): The GCHQ translator was charged under s.1 OSA with leaking a U.S. request to bug the U.N. in the run-up to the Iraq war. Prosecution was abandoned at court.[12]

o. Neil Garrett (2005): the ITV News producer was arrested in October 2005 under the OSA after publishing internal police information about the shooting of the Brazilian, Jean Charles de Menezes, by the London police on July 22, 2005 after he was misidentified as one of the suspects involved in the previous day’s failed bombing attempts. The story revealed that in an effort to deflect criticism, the police had misled the public about de Menezes’ actions before he was shot. Garrett was cleared in May 2006 after several detentions.[13]

p. Thomas Lund-Lack (2007): a civilian member of staff at Scotland Yard who leaked a Joint Terrorism Analysis report to the Sunday Times to “bring out the problems that he believed he had seen”. The hearing came about after an article published in the Sunday Times on April 22 2007 claimed that Iraq-based al-Qaida leaders were planning terror attacks in the UK. Jailed for 8 months.

q. Keogh and O’Connor (2007): There were successful prosecutions under s. 3 and s. 5 OSA 1989 of a civil servant (a Cabinet Office employee seconded to the Foreign Office) and an MP’s researcher for unauthorised disclosure of a memo between U.K. Prime Minister Tony Blair and U.S. President George W. Bush. Keogh received six months’ imprisonment, O’Connor received three months’ imprisonment.[14]

r. Derek Pasquill (2008): A Foreign Office official was charged under s.3 OSA1989 with leaking to a journalist details of U.K. involvement in rendition and U.K. interaction with Muslim extremist groups. Prosecution was abandoned at court. The case against him collapsed after internal FCO papers revealed that Pasquill’s leaking of the information had actually been helpful in starting a constructive debate, and that one senior official had written that disclosure had not caused any harm, including to national security and international relations[15].

s. Nicholas Thompson (2008): the senior detective was charged and tried under s 4(1) OSA 1989 with two charges of leaking sensitive information and naming the maker of a confidential phone call to as suspected drug dealer. A Southwark Crown Court jury found him not guilty of both charges in January 2005 after he explained that the drug dealer was an unofficial police informant

t. Daniel Houghton (2010): A member of MI6 was prosecuted under s. 1 OSA 1989 for trying to sell sensitive information about intelligence collection and MI6 staff lists to the Netherlands. He received 12 months’ imprisonment.[16]

u. Amelia Hill (2011): The Guardian journalist was the subject of a threatened production order under the Police and Criminal Evidence Act 1984 relying on s 5 OSA1989 in an attempt to force the handover of documents relating to the source of information for a number of articles, including an article published by Hill and Nick Davies on 4 July disclosing “the interception of the telephone of Milly Dowler”. The Metropolitan Police still sought to charge Hill (under the Data Protection Act) over the leaks but eventually the CPS announced that it would not be in the public interest to charge her. [17]

v. William McNeilly (2015): nuclear weapons systems engineer at Faslane naval base who published a document alleging that poor safety and security meant that Trident was a “disaster waiting to happen” which he sent to media outlets. Was arrested under OSA 1989. Not charged: the MoD said that the allegations were anecdotal rather than secret, and therefore did not fall under the purview of the OSA. Was later given a dishonourable discharge from the navy.

There are no doubt other cases that have not made it into the public domain.[18]

N.B.: as illustrated in the list above, civil injunction proceedings often accompany OSA prosecutions. For example, a permanent injunction and judgment in civil proceedings for breach of confidentiality were obtained against David Shayler after the conclusion of his criminal proceedings. AG v Shayler, [2006] EWHC 2285 (QB). In MoD v Griffin, [2008] EWHC 1542 (QB), the authorities obtained a permanent injunction against a former member of the U.K. Special Forces prohibiting any disclosures of material obtained during his employment but there was no prosecution.

Extraterritorial Reach

There are several ways by which a state can exercise jurisdiction:

  • Territory;
  • Active personality (i.e. the accused will be prosecuted in the country of the nationality of the offender);
  • Passive personality (i.e. the accused will be prosecuted in the country of the nationality of the victim);
  • Universal jurisdiction (i.e. the state will be able to prosecute regardless of the nationality of the offender, the victim, and where the offence was committed, e.g. torture).

The primary basis of English criminal jurisdiction is territorial. It is concerned with criminal acts committed within England and Wales. However, the OSAs provide for limited extra-territorial jurisdiction, in that they apply to offences “when committed in any part of Her Majesty’s dominions or where committed by British officers or subjects elsewhere.”

So the OSA provisions will catch offences by British citizens committed anywhere in the world – it does not matter where the relevant disclosure occurs – or offences by others if committed within the U.K. or certain U.K. territories (see s 10 OSA1911 / s 15 OSA 1989). This is intended to cover both “espionage” (i.e., where someone travels to a foreign country and discloses secret information to a foreign power) and cases where someone travels to a foreign country and discloses secret information, perhaps to a foreign newspaper. It would not apply to the foreign newspaper or its editor, however.

Further, conspiracy to commit OSA offences is extraterritorial. The essence of a conspiracy in U.K. law is an unlawful agreement between two or more parties to carry out a criminal plan (section1 Criminal Law Act 1977). An agreement to commit criminal offences outside the UK is triable in an English court, by virtue of section 1A of the Criminal Law Act 1977, provided that four conditions are met, including a requirement that the act constitutes an offence under the law in force in that country or territory.

Terrorism Acts

There are some elements of the Terrorism Acts which can also cover publication on national security issues – for example, s 58A Terrorism Act 2000 provides that an offence is committed where someone publishes or communicates information about an individual who is or has been a member of any of the intelligence agencies (and the armed forces and the police) which is “likely to be useful to someone committing or preparing an act of terrorism”.

Certain elements of the Terrorism Acts (sections 59, 62-63 of the Terrorism Act 2000 and section 17 of the Terrorism Act 2006) are specifically extra territorial.

Further Resources

  • Official Secrets Act 1989, http://www.legislation.gov.uk/ukpga/1989/6/contents
  • Official Secrets Act 1911, http://www.legislation.gov.uk/ukpga/Geo5/1-2/28/contents
  • Official Secrets Act 1920, http://www.legislation.gov.uk/ukpga/Geo5/10-11/75/introduction
  • House of Commons Standard Note, SN/PC/02023 (Dec. 30, 2008) (Note setting out the historical background to the current laws on official secrecy. It also provides a brief summary of notable cases that have involved official information legislation), https://fas.org/irp/world/uk/secrecy.pdf
  • Article 19 and Liberty, Secrets, Spies, and Whistleblowers: Freedom of Expression in the UK (Nov. 2000) (commentary on UK national security laws and mechanisms), https://www.article19.org/data/files/pdfs/publications/secrets-spies-and-whistleblowers.pdf
  • Katherine Feuer, Protecting Government Secrets: A Comparison of the Espionage Act and the Official Secrets Act, 38 B.C. Int’l & Comp. L. Rev. 91 (2015), http://lawdigitalcommons.bc.edu/iclr/vol38/iss1/4/
  • Gail Bartlett & Michael Everett, Briefing Paper: The Official Secrets Acts and Official Secrecy (May 2, 2017) (Report describing the main elements, history and developments Official Secrets Acts), http://researchbriefings.parliament.uk/ResearchBriefing/Summary/CBP-7422#fullreport
  • Law Commission, Protection of Official Data: A Consultation Paper Overview (Feb. 2, 2017), http://www.lawcom.gov.uk/app/uploads/2017/02/cp230_overview.pdf
  • Law Commission, Protection of Official Data: Executive Summary (Feb. 2, 2017), http://www.lawcom.gov.uk/app/uploads/2017/02/cp230_protection_of_official_data_summary.pdf
  • Law Commission, Protection of Official Data: A Consultation Paper (Feb. 2, 2017), http://www.lawcom.gov.uk/app/uploads/2017/02/cp230_protection_of_official_data.pdf

C. Summary of key principles under U.S. Law

The principle U.S. statute is the Espionage Act, enacted in June 1917 shortly after U.S. entry into World War I. It was based in some respects on the then-current version of the British Official Secrets Act. The Espionage Act is broadly written and criminalizes a wide range of intelligence-related activities. The provisions most relevant to the press include those that make it unlawful to:

(1) “receive or obtain” from “any person or any source whatever,” any “information respecting the national defense with intent or reason to believe that the information is to be used to the injury of the United States, or to the advantage of any foreign nation” while knowing or

having reason to believe that the source of the information was providing it in violation of the Act;

(2) have “unauthorized possession of” a document “relating to the national defense” with “reason to believe [the information] could be used to the injury of the United States or to the advantage of any foreign nation” and to “willfully communicate” it to “any person not entitled to receive it;

(3) to conspire with another person to do any of the foregoing if any member of the conspiracy does “any act to effect the object of the conspiracy.”

D. The Espionage Act in Practice

In the years immediately following enactment, there were more than a thousand prosecutions under the Act and heavy sentences were imposed in circumstances that, by today’s legal standards, clearly violated fundamental constitutional rights. This included convictions for anti-war speech by social activists, labor organizers, and Jehovah’s Witnesses, and even prosecutions for creative works, such as a film that depicted Britain, an ally, in an unflattering light.

Although the Supreme Court upheld the constitutionality of the Act in Schenck v. United States, 249 U.S. 47 (1919), judicial decisions have limited the applicability of the Act in important ways. Schenck itself, in a concurrence by Justice Oliver Wendell Holmes, introduced the theory that punishment is limited to expression that is a “clear and present danger” to the government, equivalent to “falsely shouting fire in a crowded theater.” In Gorin v. United States, 312 U.S. 19 (1941), the Supreme Court held that information “relating to the national defense” only applies to secret information that is not publicly available, effectively curtailing abusive prosecutions of social activists. And in United States v. Hartzel, 322 U.S. 680 (1944), the Court held that any violation of the Act requires proof beyond a reasonable doubt of a specific intent to injure the United States or advantage a foreign nation. Lower court decisions, including in United States v. Rosen, 445 F. Supp. 2d 602, 626 (E.D. Va. 2006), have emphasized that language, finding that it “requires the government to demonstrate the likelihood of the defendant’s bad faith purpose to either harm the United States or to aid a foreign government.”

No prosecution has ever been brought against the press under the Espionage Act, and therefore no decision squarely addresses the constitutionality of such a prosecution. But in New York Times v. United States, 403 U.S. 713 (1971) (the “Pentagon Papers” case), the issue was addressed indirectly. When the government filed suit seeking an injunction against publication of the Pentagon Papers, it argued that an injunction was warranted to prevent the commission of a crime, because section 793(e) of the Espionage Act barred publication (i.e., willful communication) of the material. The Court’s decision focused on the constitutionality of prior restraint, but writing in dicta, several justices speculated regarding whether The Times could be prosecuted post-publication for violations of the Espionage Act. Three concurring justices indicated they believed the government could bring a prosecution against The Times. Ultimately, no charges were brought .

The Supreme Court’s later decision in Bartnicki v. Vopper, 532 U.S. 514 (2001), also may be relevant to any future prosecution brought against a journalist under the Act. In Bartnicki and subsequent decisions, U.S. courts established that the First Amendment generally shields journalists from liability for the receipt and publication of truthful information about a matter of public interest that was illegally obtained by a source, as long as the journalist was not involved and did not solicit the source to commit the illegal acts.

After the 1930s the Act largely fell into disuse. However, the Obama administration reversed that trend, bringing an unprecedented number of prosecutions under the Act against leakers of classified information. It seems likely that the current administration also will take an aggressive stance.

a. Jeffrey Sterling (2011) – Sterling, a lawyer and CIA employee, was charged and convicted under the Act for revealing information about Operation Merlin to journalist James Risen. Operation Merlin was a flawed CIA operation to leak faulty nuclear intelligence to Iran. As part of the prosecution, Risen was subpoenaed to reveal his sources but refused to comply. Sterling was sentenced in 2015 to 3.5 years in prison.[19]

b. Thomas Drake (2010) – Drake, a former senior executive of the NSA, was a whistleblower who leaked information to journalists about waste, fraud, and abuse at the NSA, particularly in connection with the Trailblazer Project, a multi-billion dollar failed attempt at electronic intelligence gathering. He was charged with five counts of violating the Espionage Act and other offenses. In 2011, the majority of the charges against Drake were dropped and he pleaded guilty to one misdemeanor, for which he received a sentence of community service.[20]

c. Stephen Jin-Woo Kim (2010) – A contractor for the State Department, he was indicted under the Act for disclosure in 2009 of information to reporter James Rosen relating to North Korea’s nuclear program. In 2014, Kim entered a guilty plea to a single felony count of disclosing national defense information to an unauthorized person and was sentenced to 13 months in prison.[21]

d. Chelsea (formerly Bradley) Manning (2010) – Manning, a private in the U.S. Army, was accused of leaking more than 700,000 classified or sensitive military and diplomatic documents to Wikileaks. She was charged under a provision of the military code that incorporates parts of the Espionage Act. In 2013, following a bench trial by court martial, she was convicted on six counts of violating the Espionage Act, among other infractions, and sentenced to 35 years in prison. In 2017, President Obama commuted her sentence.[22]

e. John Kiriakou (2012) – The former CIA officer was charged under the Act with leaking information to journalists about the identity of undercover agents, including one who was allegedly involved in waterboarding interrogations of al-Qaeda. In 2013, Kiriakou pleaded guilty to sharing the covert officer’s name and the government dropped several other charges against him. He was sentenced to 30 months in prison.[23]

f. Edward Snowden (2013) – Snowden was charged under the Act with “unauthorized communication of national defense information” and “willful communication of classified intelligence with an unauthorized person” as a result of his disclosure of documents exposing the NSA’s PRISM Surveillance Program.[24] Snowden fled the US and has been granted asylum in Russia until 2020.[25]

g. Reality Leigh Winner (2017) – Winner, an NSA contractor, was arrested and charged under the Act for allegedly leaking a classified NSA document on Russian interference during the 2016 U.S. presidential election to The Intercept. Winner pleaded not guilty and is awaiting trial.[26]

Extra-Territorial Reach of the Espionage Act

One concern regarding the Espionage Act is its potential extraterritorial application. There is one only reported decision, United States v. Zehe, 601 F. Supp. 196 (D. Mass. 1985), directly on point. The Zehe court held that the Act permitted the U.S. government to prosecute acts of foreign nationals in foreign jurisdictions. Zehe was an East German citizen accused of committing espionage in Mexico and in his native country. The court found that “espionage is an offense threatening the national security of the United States, regardless of where it occurs.” Of particular import was the fact that the 1948 version of the Espionage Act specified that it applied “within the admiralty and maritime jurisdiction of the United States and on the high seas, as well as within the United States.” But that provision was struck by Congress in 1961.

While Zehe is from a lower court, it comports with well-established principles of international jurisdiction under U.S. law. Congress has the power to regulate conduct outside United States territory. See, e.g., EEOC v. Arabian Am. Oil Co., 499 U.S. 244, 248 (1991). While the courts are to presume that Congress intended only domestic jurisdiction for any statute, the courts are to apply the law extraterritorially when Congress has “clearly manifested” such an intent. Sale v. Haitian Ctrs. Council, Inc. 509 U.S. 155, 188 (1993). In criminal law, the extraterritorial reach has been a feature of U.S. law stretching back to 1922 when the Supreme Court observed that criminal statutes “are, as a class, not logically dependent on their locality for the Government’s jurisdiction, but are enacted because of the right of the Government to defend itself against obstruction, or fraud wherever perpetrated[.]” United States v. Bowman, 260 U.S. 94, 98 (1922). See also United States v. Bin Laden, 92 F. Supp. 2d 1989, 194-95 (S.D.N.Y. 2000) (holding that extraterritorial laws can be applied to the conduct of foreign nationals).

For non-U.S. publishers, the reach of U.S. law is significant because of the broad, if not clearly defined, substantive reach of the Espionage Act. No publisher has ever been prosecuted under the Espionage Act. As a result, the possibility of a First Amendment defense to criminal charges has never been explored. And it remains a subject of debate whether the Act should be applied to anyone other than classically defined spies. But, on its face, the Act applies to disclosure of classified information and other information maintained in secrecy for defense purposes. It also has provisions addressing the receipt and retention of covered materials. Under certain provisions, neither serious harm nor intent to harm is required. For instance, Section 798 applies facially when a disclosure of classified information is “in any manner prejudicial to the safety or interest of the United States.” And Section 798 ostensibly applies even if the disclosure is not done with intent or reason to believe that the information can be used to the injury of the United States. Other sections, using various formulations of the harm and intent requirements, similarly leave unanswered a host of questions about the defenses that would be available if the Act were ever used to prosecute journalists or publishers.

Further Resources

  • Espionage Act Section 793, https://www.law.cornell.edu/uscode/text/18/793
  • Espionage Act Section 798, https://www.law.cornell.edu/uscode/text/18/793
  • Totally History, Espionage Act of 1917 (Historical background on Espionage Act), http://totallyhistory.com/espionage-act-of-1917/
  • House Committee on the Judiciary, Report of the Interdepartmental Group on Unauthorized Disclosures of Classified Information (March 31, 1982) (Report detailing unauthorized disclosure procedures, history and proposed revisions), https://fas.org/sgp/library/willard.pdf
  • Decision, N.Y. Times Co. v. United States, Nos. 1873, 1885 (U.S. 1971) (the Pentagon Papers Case), https://www.law.cornell.edu/supremecourt/text/403/713
  • John T. Correll, The Pentagon Papers, Air Force Magazine (Feb. 2007) (Summary of the Pentagon Papers Case), http://www.airforcemag.com/MagazineArchive/Pages/2007/February%202007/0207pentagon.aspx
  • The Pentagon Papers: Secrets, Lies & Audiotapes, The Secret Briefs and the Secret Evidence, The National Security Archive at The George Washington Univ. (Providing links to materials from Pentagon Papers), http://nsarchive.gwu.edu/NSAEBB/NSAEBB48/briefs.html
  • The Pentagon Papers: Secrets, Lies & Audiotapes, The Secret Briefs and the Secret Evidence, The National Security Archive at The George Washington Univ. (Providing links to audio recordings of President Richard Nixon recorded after the publication of the Pentagon Papers), http://nsarchive.gwu.edu/NSAEBB/NSAEBB48/nixon.html
  • George Freeman, The Espionage Act Turns 100: Will Trump Use It Against Journalists?, MLRC MediaLawLetter (June 2017), http://www.medialaw.org/images/medialawletter/june2017.pdf
  • Shaina Jones & Jay Ward Brown, The Assange Effect: Wikileaks, the Espionage Act and the Fourth Estate, MLRC Bulletin (Aug. 2011), http://www.lskslaw.com/documents/WikiArticle(00445013).PDF

E. Key Principles in International Law and Other Jurisdictions

Fed’n of Am. Scientists, Global Principles on National Security and the Right to Information (“The Tshwane Principles”) (June 12, 2013), https://fas.org/sgp/library/tshwane.pdf

Katharine Larsen & Julia Atcherley, Freedom of Expression-Based Restrictions on the Prosecution of Journalists Under State Secrets Laws: A Comparative Analysis, 5 J. of Int’l Media & Entm’t L 49 (2013-14), https://www.americanbar.org/content/dam/aba/administrative/communications_law/imel-52.authcheckdam.pdf

Hugh Tomlinson QC, Case Law, Strasbourg: Geisbert v. France, Sanctions for publishing prosecution statements, no violation of Article 10, Inforrm’s Blog (June 6, 2017),

https://inforrm.wordpress.com/2017/06/02/case-law-strasbourg-giesbert-v-france-sanctions-for-publishing-prosecution-statements-no-violation-of-article-10-hugh-tomlinson-qc/#more-37554

II. Source Protection

A. Summary of key principles relating to UK source protection

U.K. law offers a qualified statutory protection to journalists against compelled disclosure of confidential sources. This provision had been interpreted narrowly by the U.K. courts, which have frequently ordered disclosure. Section 10 of the Contempt of Court Act (“CoCA”) 1981 provides:

No court may require a person to disclose, nor is the person guilty of contempt of court for refusing to disclose the source information contained in the publication for which he is responsible, unless it is established to the satisfaction of the court that disclosure is necessary in the interests of justice or national security or for the prevention of disorder or crime.

The following cases concern the application of Section 10:

Re an Inquiry under the Company Securities (Insider Dealing) Act 1985, [1988] AC 660,

X Ltd v Morgan-Grampian (Publishers) Ltd, [1990] 2 All ER 1

Camelot v. Centaur Communications, [1997] EWCA Civ 2554

Secretary of State for Defence v Guardian Newspapers, [1985] AC 339 (see Lord Diplock at p. 350),

Ashworth Hospital Authority v MGN Ltd, [2002] UKHL 29

See also

Sir Cliff Richard v BBC [2017] EWHC 1291 (a privacy claim against the BBC and South Yorkshire Police, where information about a source was sought and ordered to be produced by the court).

Further Resources

  • Crown Prosecution Service, Legal Guidance Note on Prosecuting Cases Where Public Servants Have Disclosed Confidential Information to Journalists (last updated 27 July 2009): http://www.cps.gov.uk/legal/p_to_r/prosecuting_cases_where_public_servants_have_disclosed_confidential_information_to_journalists/
  • IALS Information Law and Policy Centre, Protecting Sources and Whistleblowers in a Digital Age (2017), https://clip.blogs.sas.ac.uk/files/2017/02/Sources-Report_webversion_22_2_17.pdf
  • PA Media Lawyer, Former policewoman suing Sunday Times loses bid to see journalist’s notes, Press Gazette (Nov. 24, 2016) (Judge orders Metropolitan Police to provide information to BBC in Cliff Richard privacy case), http://www.pressgazette.co.uk/former-policewoman-suing-sunday-times-loses-bid-to-see-journalists-notes/
  • PA Media Lawyer, Channel 4 under pressure to reveal sources of Dispatches probe into Ryanair through Irish court, Press Gazette (July 4, 2017) (Airline asks Irish court to order disclosure of sources), http://www.pressgazette.co.uk/channel-4-under-pressure-to-reveal-sources-of-dispatches-probe-into-ryanair-through-irish-court
  • Gill Phillips, On Protection of Journalistic Sources, European University Institute (Oct. 10, 2014), http://journalism.cmpf.eui.eu/discussions/on-protection-of-journalistic-sources/

B. Summary of key principles relating to US source protection

In the United States, journalists generally enjoy a qualified immunity against compelled disclosure of sources, at least except where the journalist is a witness to the commission of a crime. The scope of that protection, however, varies significantly from state to state. This is because Congress has not yet enacted a federal shield law, and the Supreme Court has not clearly defined the scope of the common law or First Amendment protections in this area.

The Supreme Court has considered the question of whether reporters may be compelled to testify about their confidential sources only once, in Branzburg v. Hayes, 408 U.S. 665 (1972). There, three reporters were subpoenaed to testify before a Grand Jury regarding illegal actions they had witnessed in the course of their reporting. In a plurality decision (meaning that a majority of the justices agreed on the outcome, but not on the basis for it), the Court ordered the journalists to testify. In conflicting opinions, the justices signalled that, on the one hand, they recognized the importance to a free press of shielding reporters from disclosing their sources. But, on the other hand, they were reluctant “to grant newsmen a testimonial privilege that other citizens do not enjoy.” The result was a decision that has been interpreted in different ways, by different courts.

Following Branzburg, the majority (but not all) of the federal circuit courts have held that the First Amendment provides a qualified immunity against the compelled disclosure of a journalist’s sources. In many state and federal jurisdictions, courts also have found that a common law qualified privilege exists. In addition, forty states and the District of Columbia have enacted shield laws to protect journalists’ sources. Those laws vary considerably, however, in the degree of protection provided. Some narrowly define “journalist,” potentially excluding freelancers, bloggers, student journalists, and others. Some protect only the identity of a source, not a journalists’ newsgathering materials. Some only apply if the journalist gave the source a promise of confidentiality. And where a shield law applies, it generally provides a qualified, rather than absolute, immunity. The factors that a court should consider vary.

Generally—whether applying a common law, First Amendment, or shield law analysis—courts consider some variation on the following factors: the relevance and importance of the information sought from the reporter; whether the party seeking the information has exhausted other alternatives; and whether the information is sought in civil or criminal proceedings. Courts are more likely to recognize the privilege in civil proceedings.

Recognizing the constitutional issues implicated in compelling journalists to turn over information, many law enforcement agencies have self-imposed guidelines limiting the use of subpoenas against the media. Since 1970 the U.S. Department of Justice’s guidelines have limited the circumstances when such subpoenas may issue from the federal government and require that the Attorney General must personally approve the issuance. The current Attorney General, Jeff Sessions, has, however, indicated that he is considering revising those guidelines.

Further Resources

  • Branzburg v. Hayes, 408 U.S. 665 (1972), https://supreme.justia.com/cases/federal/us/408/665/case.html
  • Society of Professional Journalists, Shield Law 101: Frequently Asked Questions, http://www.spj.org/shieldlaw-faq.asp
  • U.S. Dept. of Justice, Policy regarding obtaining information from, or records of, members of the news media; and regarding questioning, arresting, or charging members of the news media, 28 CFR 50.10, https://www.law.cornell.edu/cfr/text/28/50.10
  • Reporters Committee for Freedom of the Press, The Reporter’s Privilege, https://www.rcfp.org/reporters-privilege
  • J. Gerstein and M. Conway, Sessions: DOJ reviewing policies on media subpoenas, Politico (Aug. 4, 2017), http://www.politico.com/story/2017/08/04/doj-reviewing-policies-on-media-subpoenas-sessions-says-241329
  • Brief of Amicus Curiae The Reporters Committee for Freedom of the Press and 57 Media Organizations in Support of Non-Party Appellant, New York v. Juarez, No. 30222/15 (Aug. 19, 2016), https://www.rcfp.org/sites/default/files/2016-08-19-People-v-Juarez-In-re-Robles.pdf
  • Alan Feuer, Times Reporter Can’t Be Compelled to Testify in Baby Hope Case, Court Rules, N.Y. Times (Oct. 20, 2016), https://www.nytimes.com/2016/10/21/nyregion/times-reporter-baby-hope-case.html

C. International source protection

Various authorities in international law point to a recognition that protections for freedom of expression also extend some degree of protection to journalists’ sources.

Multi-Jurisdiction Analyses

  •  Privacy International briefing on protecting sources, https://www.privacyinternational.org/reports/model-brief-on-the-protection-of-journalists-sources/national-recognition-of-the-protection
  • Article 19, Briefing Paper on Protection of Journalists’ Sources, (May 1998), http://www.article19.org/data/files/pdfs/publications/right-to-protect-sources.pdf
  • UNESCO Report on Protecting Journalism Sources in the Digital Age (27 April 2017), http://en.unesco.org/news/unesco-releases-new-publication-protecting-journalism-sources-digital-age
  • The African Commission on Human and Peoples’ Rights, Resolution on the Adoption of the Declaration of Principles on Freedom of expression in Africa, Art. XV (Oct. 23, 2012), http://www.achpr.org/files/sessions/32nd/resolutions/62/achpr32_freedom_of_expression_eng.pdf

Europe

  • European Parliament, Resolution on confidentiality of journalists’ sources and the right of civil servants to disclose information, Adopted 1993, A3-0434/93, reported in The Official Journal of the European Communities on 18 January 1994, No. C 44/34 (18 January 1994).
  • Council of Europe, Resolution on Journalistic Freedoms and Human Rights, (adopted at the 4th European Ministerial Conference on Mass Media Policy (Prague, 7-8 December 1994)), http://www.coe.int/T/E/Com/Files/Events/2002-09-Media/ConfMedia1994.asp
  • Council of Europe, Recommendation No. R (2000) 7 of the Committee of Ministers to member states on the right of journalists not to disclose their sources of information (Adopted Mar. 8, 2000), https://rm.coe.int/16805e2fd2
  • ECHR, Factsheet: Protection of journalistic sources (July 2017), http://www.echr.coe.int/Documents/FS_Journalistic_sources_ENG.pdf
  • Written Comments by Open Society Justice Initiative, et al., in the Case of Sanoma Uitgevers B.V. v the Netherlands Application No. 38224/03 (Nov. 2009), https://www.opensocietyfoundations.org/sites/default/files/written-comments-20091130.pdf
  • Dirk Voorhoof, Protection of Journalistic Sources Under Fire? How developments in European human rishts laws have reinforced the right of journalists to have their sources protected, European Media Law, Collection of Materials 2012-13, Knops Publ., 2012, http://hdl.handle.net/1854/LU-3060033
  • Council of Europe, Thematic Factsheet: The Protection of Journalistic Sources, A Cornerstone of the Freedom of the Press (May 2017), https://rm.coe.int/factsheet-on-the-protection-of-journalistic-sources-may2017/16807178d7

Canada

  • Canadian Association of Journalists, briefing: http://www.caj.ca/?p=358
  • Canadian Journalists for Free Expression, Your Right to Protect Anonymous Sources, (Jan. 14, 2016), http://www.cjfe.org/your_right_to_protect_anonymous_sources
  • Alyshah Hasham, Vice journalist must turn over materials to RCMP, appeals court rules, The Star (Mar. 22, 2017), https://www.thestar.com/news/canada/2017/03/22/vice-journalist-must-turn-over-materials-to-rcmp-appeals-court-rules.html

Australia

  • The Australian Collaboration, Democracy in Australia – Protection of Journalists and their Sources (Apr. 2015), http://www.australiancollaboration.com.au/pdf/Democracy/Protection-journalists-sources.pdf
  • Seamus Bradley, Australia’s shield laws, state by state, The Guardian (7 Aug. 2013), https://www.theguardian.com/world/2013/aug/07/australia-journalist-protection-shield-laws

III. Ancillary issues

A. Secure Drop

In an effort to minimize risks to journalists and sources, many news organizations and individual journalists have turned to technological solutions such as SecureDrop, an open-source software platform. Such tools can provide anonymity to sources and a secure method for communicating confidential information to journalists without leaving digital footprints. That anonymity, in turn, provides a practical defense against compelled disclosure of source identity. For more information, see:

  • https://securedrop.org/ (SecureDrop website)
  • Micah Lee & Trevor Timm, How We Plan on Keeping SecureDrop as Secure as Possible (Oct. 15, 2013) (discussing the effort to keep SecureDrop secure), https://freedom.press/news-advocacy/how-we-plan-on-keeping-securedrop-as-secure-as-possible/
  • Tom Lowenthal, How SecureDrop helps CPJ protect journalists, CPJ (May 12, 2016), https://cpj.org/blog/2016/05/how-securedrop-helps-cpj-protect-journalists.php
  • https://securedrop.theguardian.com/ (SecureDrop portal for The Guardian)
  • https://www.theguardian.com/help/2016/sep/19/how-to-contact-the-guardian-securely (Secure contact instructions on The Guardian’s website)
  • Laura Hazard Owen, How easy is it to securely leak information to some of America’s top news organizations? This easy, Nieman Lab (Jan. 27, 2017), http://www.niemanlab.org/2017/01/how-easy-is-it-to-securely-leak-information-to-some-of-americas-top-news-organizations-this-easy/
  • https://www.nytimes.com/newsgraphics/2016/news-tips/ (Instructions on how to securely provide information to the New York Times)
  • Matthew L. Schafer & Katherine M. Bolger, Flowerpot to Secure Drop: Promoting Anonymity While Preserving the Bartnicki Principle, 31 Comm. Lawyer 1 (2015), https://www.americanbar.org/content/dam/aba/publications/communications_lawyer/fall2015/CL_v031n04_Fall2015_reprint.authcheckdam.pdf

B. Border searches

An increasing area of concern for journalists and media lawyers is the search and seizure of electronic devices at the border. As discussed above, constitutional, statutory, and common law protections restrict the compelled disclosure of journalists’ sources and work materials within some jurisdictions. Protections also apply to attorneys’ privileged materials. However, some courts—including U.S. courts—have held that such protections do not apply (or apply to a more limited degree) when crossing international borders. Consequently, customs and border control may be permitted to search the contents of electronic devices at the border and may also be permitted to detain devices for forensic examination. For more information, see:

  • Olivia Solon, US border agents are doing ‘digital strip searches’. Here’s how to protect yourself, The Guardian (Mar. 31, 2017), https://www.theguardian.com/us-news/2017/mar/31/us-border-phone-computer-searches-how-to-protect
  • Jonathan Goldsmith, Border searches of your electronic devices, The Law Society Gazette (May 8, 2017), https://www.lawgazette.co.uk/comment-and-opinion/border-searches-of-your-electronic-devices/5060978.article
  • Office of Information Security, Princeton University, FAQ’s – Searches of Electronic Devices at the Border (2017), https://informationsecurity.princeton.edu/sites/informationsecurity/files/searches_of_electronic_devices_at_the_border_-_faqs_-_march_2017_0.pdf
  • Esha Bhandardi, Nathan Freed Wessler & Noa Yachot, Can Border Agents Search Your Electronic Devices? It’s Complicated., ACLU (Mar. 14, 2017), https://www.aclu.org/blog/free-future/can-border-agents-search-your-electronic-devices-its-complicated
  • Complaint for Injunctive Relief, Knight First Amendment Inst. at Columbia Univ. v. United States Dep’t of Homeland Sec., 17-cv-00548 (D.D.C. Mar. 3, 2017), ECF No. 1 (Complaint in FOIA action seeking disclosure of records concerning suspicionless border searches), https://www.documentcloud.org/documents/3525700-Complaint-03-27-2017.html
  • Kaveh Waddell, The Steady Rise of Digital Border Searches, The Atlantic (Apr. 12, 2017), https://www.theatlantic.com/technology/archive/2017/04/the-steady-rise-of-digital-border-searches/522723/
  • Ron Nixon, Border Officers Nearly Double Searches of Electronic Devices, U.S. Says, N.Y. Times (Apr. 11, 2017), https://www.nytimes.com/2017/04/11/us/border-customs-officers-electronic-devises-search.html?_r=0
  • Daniel Victor, What Are Your Rights if Border Agents Want to Search Your Phone?, N.Y. Times, (Feb. 14, 2017) https://www.nytimes.com/2017/02/14/business/border-enforcement-airport-phones.html

C. Encryption Versus Enforcement

1. The UK

Ever since Glenn Greenwald’s partner, David Miranda was detained at Heathrow airport under Schedule 7 Terrorism Act 2000, while en route to Brazil[27] and his property, including USB drives, his computer and mobile phone, seized in attempt to force him to reveal passwords, the issue of encryption of material has been on the government’s agenda.

More recently the discussion has manifested itself with calls for a ban on end-to-end encryption services[28].

See Press Association, Former spy chief warns over terrorists’ use of encrypted messaging services, This is Money (July 10, 2017), http://www.thisismoney.co.uk/wires/pa/article-4681398/Former-spy-chief-warns-terrorists-use-encrypted-messaging-services.html:

Terrorists’ use of messaging services with powerful encryption cannot be tackled by new laws, a former spy chief has warned. Robert Hannigan, who was head of GCHQ until earlier this year, said legislation would not provide a “magic solution” to the issue, which has emerged as a major challenge for intelligence agencies in recent years. Controversy over technology companies’ responsibilities to support authorities in the fight against terrorism has intensified after Britain was hit by a flurry of deadly attacks. A new debate over agencies’ access to communications was sparked after it was reported that Westminster terrorist Khalid Masood’s phone connected with encrypted messaging app WhatsApp shortly before the atrocity in March. Scrutiny has focused on so-called end-to-end encryption, which means that messages are encoded in such a way that only the sending and receiving devices can read them. Mr Hannigan said: “I can’t see, particularly as many of these companies are US-based, that legislation is the answer on this. I don’t think there is a magic solution where you can just legislate it away.” He described encryption as an “immensely complicated” area. “Everyone would like a simple answer on encryption and unfortunately it is very difficult,” he said. “Encryption is an overwhelmingly good thing – it keeps us all safe and secure. Throughout the Cold War, until about 15 years ago, it was something which only governments could do at scale. “What’s happened is that you can now get the same grade of encryption on a number of apps on your smartphone. It’s available to everybody. That is a good thing. “The challenge for governments is how do you stop the abuse of that encryption by a tiny minority of people who want to do bad things, like terrorists or criminals.” End-to-end encryption could not be uninvented, the GCHQ’s ex-director told BBC Radio News, adding: “The best that you can do is work with the companies in a co-operative way to find ways around it.” Mr Hannigan emphasised that he was not advocating building “back doors” into apps, saying this approach was “technically difficult” and would not work. He also delivered a stark assessment of the scale of the cyber threat linked to Russia, saying : “There is a disproportionate amount of mayhem in cyberspace coming from Russia, from state activity. “Starting to talk about it is good – calling it out. Improving our defences is obviously really important.” But ultimately people will have to push back against Russian state activity and show that it’s unacceptable.” Asked how this could be done, he said: “It doesn’t have to be done by cyber retaliation but it may be that that is necessary at some time in the future.” It may be sanctions and other measures, just to put down some red lines and say that this behaviour is unacceptable.”

Further Resources

  • Information Commissioner’s Office, Encryption, https://ico.org.uk/for-organisations/guide-to-data-protection/encryption/
  • Natasha Lomas, Could the UK be about to break end to end encryption? TechCrunch (May 27, 2017), https://techcrunch.com/2017/05/27/could-the-uk-be-about-to-break-end-to-end-encryption/
  • Natasha Lomas, We want to limit use of e2e encryption, confirms UK minister TechCrunch (June 5, 2017), https://techcrunch.com/2017/06/05/we-want-to-limit-use-of-e2e-encryption-confirms-uk-minister/
  • Alexander Martin, UK gov says new Home Sec will have powers to ban end-to-end encryption, The Register (July 14, 2016) http://www.theregister.co.uk/2016/07/14/gov_says_new_home_sec_iwilli_have_powers_to_ban_endtoend_encryption/?mt=1468494499944

2. The US

Given the increase in cybersecurity attacks (and their increasing sophistication), demand for companies to safeguard consumer data is on the rise. This has led many technology companies to develop enhanced security features, including encryption. However, the use of encryption has, at times, put companies in direct conflict with law enforcement agencies. Often, even where law enforcement has a court order authorizing access to a suspect’s communications, the government lacks the technical ability to access the data due to encryption features. This is often referred to as the “Going Dark” problem.[29]

The most notable example of this conflict occurred in In re the Search of an Apple iPhone Seized During the Execution of a Search Warrant on a Black Lexus IS300, California License Plate 35KGD203 (the “San Bernardino Case”). There, the FBI sought to enforce a federal magistrate judge’s order requiring Apple to write a special software code to decrypt the iPhone belonging to one of the shooters responsible for shooting terrorist attack in San Bernardino, California on December 2, 2015.[30] In doing so, the FBI argued that the court had authority to require Apple to write the software under the All Writs Act of 1789 (“AWA”), 28 U.S.C. § 1651,[31] which gives U.S. courts the power to “issue all writs necessary and appropriate in aid of their respective jurisdictions and agreeable to the usages and principles of law.”

In response, Apple argued that this interpretation of the AWA was much too broad. Instead, Apple argued that the Communications Assistance for Law Enforcement Act (“CALEA”), 47 U.S.C. § 1001 et. seq.,[32] was the controlling authority. Specifically, Apple argued that CALEA specifies when a company has a responsibility to assist the government with decryption of communications, and makes clear that an obligation does not exist where the company does not have “a copy of the decryption key.” Therefore, requiring Apple to write a new software to decrypt the iPhone was improper.[33]

Although not raised by either party, legal commentators also viewed the case as implicating the Fourth Amendment prohibition on unlawful search and seizure. As legal historians noted, one of the motivations for that Amendment was the “writs of assistance” which allowed British officials to compel colonial Americans to assist in government searches and seizures. Parallels were drawn between those writs and the compelled assistance the FBI sought from Apple.[34]

Ultimately, the FBI paid an unknown third-party to unlock the phone without Apple’s assistance.[35] The case was dismissed as moot and the overarching legal questions regarding the government’s right to encrypted data left unresolved. The debate regarding the competing interests between encryption and law enforcement remains a topic of concern, and a variety of legislative solutions have been debated, although none has been enacted.

On February 29, 2016, the Digital Security Commission Act of 2016 was introduced in the House.[36] The bill would create a “National Commission on Security and Technology Challenges,” assembling experts from the technology and law enforcement communities to produce a report on encryption policy.[37] Additionally, in April 2016, Senate Select Committee on Intelligence Chairman Richard Burr (R-N.C.) and Vice Chairman Dianna Feinstein (D-Calif.) released a draft bill entitled the Compliance with Court Orders Act of 2016, which would create a blanket requirement on any data or communications provider to be able to produce encrypted information after receiving a court order.[38] The bill has not been introduced.

Finally, the House Congressional Encryption Working Group released a Year-End Report in December of 2016.[39] The report contains four observations:

1. Weakening encryption goes against the national interest because doing so would damage cybersecurity and the tech economy;

2. Encryption is widely available and often open-source, such that U.S. legislation would not prevent bad actors from using the technology;

3. There is no one-size-fits-all fix for the challenges that encryption poses for law enforcement; and

4. Greater cooperation and communication between companies and law enforcement will be important going forward and should be encouraged.

The report suggests further investigation into avenues other than backdoors that can help address the challenges that encryption poses to government investigators, including working to ensure that all levels of law enforcement have the information and technical capacity they need to make full use of the wide variety of data that is available to them even without backdoors.[40]

Further Resources

  • Carrie Cordero & Marc Zwillinger, Should Law Enforcement Have the Ability to Access Encrypted Communications?, Wall St. J. (April 19, 2015), https://www.wsj.com/articles/should-law-enforcement-have-the-ability-to-access-encrypted-communications-1429499474
  • Eric Lichtblau, In Apple Debate on Digital Privacy and the iPhone, Questions Still Remain, N.Y. Times (Mar. 28, 2016), https://www.nytimes.com/2016/03/29/us/politics/in-apple-debate-on-digital-privacy-and-the-iphone-questions-still-remain.html?rref=collection%2Fnewseventcollection%2Fapple-fbi-case&action=click&contentCollection=technology®ion=rank&module=package&version=highlights&contentPlacement=2&pgtype=collection&_r=0
  • Paresh Dave, Apple wants the FBI to reveal how it hacked the San Bernardino killer’s iPhone, L.A. Times (Mar. 29, 2016), http://www.latimes.com/business/technology/la-fi-tn-apple-next-steps-20160330-story.html
  • Andy Greenberg, The Senate’s Draft Encryption Bill is ‘Ludicrous, Dangerous, Technically Illiterate,’ Wired (Apr. 8, 2016), https://www.wired.com/2016/04/senates-draft-encryption-bill-privacy-nightmare/
  • Brief of Amici Curiae for Amazon.com, Box, Cisco Systems, Dropbox, Evernote, Facebook, Google, Microsoft, Mozilla, Nest, Pinterest, Slack, Snapchat, Whatsapp, and Yahoo in Support of Apple Inc., In re the Search of an Apple iPhone Seized During the Execution of a Search Warrant on a Black Lexus IS300, California License Plate 35KGD20, 2016-cm-00010 (C.D. Cal. Mar. 3, 2016), https://cdn3.voxcdn.com/uploads/chorus_asset/file/6141865/appleBriefasfiled__1___1_.0.pdf
  • Mark Berman, Police Say Criminals View iPhones as ‘Another Gift from God’ Because of the Encryption, Wash. Post (Mar. 18, 2016), https://www.washingtonpost.com/news/post-nation/wp/2016/03/18/police-backing-the-fbi-in-fight-with-apple-say-criminals-love-iphones-andcall-the-encryption-a-gift-from-god/?utm_term=.108ee70af494
  • Tim Cook, Answers to your questions about Apple and security, Apple.com (Feb. 16, 2016) (Apple Inc. CEO responding to questions regarding Apple’s response to the FBI’s request regarding the San Bernardino case), http://www.apple.com/customer-letter/answers/


Notes

* Jay Ward Brown is partner in the Media and Entertainment Law Group at Ballard Spahr in Washington, D.C.; Dana R. Green is an associate in the Media and Entertainment Law Group at Ballard Spahr in New York; Gill Phillips is director of editorial legal services at Guardian News & Media in London with day to day responsibility for the content of The Guardian, The Observer and theguardian.com.

[1] For a good explainer to the background to the 1911 OSA see the BBC Radio programme, “Secret Britain”: http://www.bbc.co.uk/iplayer/episode/b0135z1f/Secret_Britain_One_Hundred_Years_of_Secrecy/

[2] c.f., e.g., Public Interest Disclosure Act 1998.

[3] Blake was a British spy who worked as a double agent for the Soviet Union; sentenced to imprisonment for a term of 42 years after pleading guilty to five counts of unlawfully disclosing information contrary to section 1(1)(c) OSA 1911.

[4] Prime was a British spy who worked for GCHQ and disclosed information to the Soviet Union; was sentenced to 35 years for breach of s 1 OSA 1911.

[5] Bettany was an intelligence officer working for MI5 who was convicted of offences under s 1 OSA 1911 after passing sensitive documents to the Soviet Embassy in London.

[6] Smith worked at a research laboratory which undertook work for the Ministry of Defence, which was a ‘prohibited place’ under Section 3(b) OSA 1911 because it held classified material including for a range of military equipment, including the Rapier missile. He aas accused of spying for the KGB and convicted of 3 section 1(1)(c) charges relating to ‘communicating material to another for a purpose prejudicial to the safety or interests of the State’. He was sentenced to 25 years in prison, reduced on appeal to 20 years.

[7] Secretary of State for Defence v. Guardian Newspapers Ltd. [1985] AC 339)

[8] Peter Preston, “A Source of Great Regret,” The Guardian (Sept. 5, 2005), http://www.guardian.co.uk/media/2005/sep/05/pressandpublishing.politicsandthemedia; http://www.guardian.co.uk/theguardian/from-the-archive-blog/2011/jun/03/guardian190-sarah-tisdall- 1983.

[9] “Troubled History of Official Secrets Act,” BBC News (18 Nov. 1998), http://news.bbc.co.uk/1/hi/uk/216868.stm.

[10] “Army spy is jailed for 10 years,” BBC News (28 Nov. 2008), http://news.bbc.co.uk/1/hi/uk/7754981.stm.

[11] “‘Blunder’ over naval vetting,” The Guardian (19 Feb. 2000), https://www.theguardian.com/uk/2000/feb/19/4.

[12] “GCHQ translator cleared over leak,” BBC News (26 Feb. 2004), http://news.bbc.co.uk/1/hi/uk/3485072.stm.

[13] Neil Garrett, “The cost of telling the truth,” The Guardian (15 May 2006), https://www.theguardian.com/media/2006/may/15/mondaymediasection.jeancharlesdemenezes.

[14] “Pair jailed over Bush-Blair memo leak,” The Guardian (10 May 2007), https://www.theguardian.com/uk/2007/may/10/politics.ukcrime.

[15] Richard Norton-Taylor, “Civil servant who leaked rendition secrets goes free,” The Guardian (10 Jan. 2008), https://www.theguardian.com/media/2008/jan/10/pressandpublishing.medialaw; Peter Beaumont, “Secret email that freed the mole at the Foreign Office,” The Guardian (13 Jan. 2008), https://www.theguardian.com/politics/2008/jan/13/uk.peterbeaumont1.

[16] “Former MI6 man Daniel Houghton admits secrecy breach,” BBC News (14 July 2010), http://www.bbc.co.uk/news/10629017; Caroline Davies, “MI6 man tried to sell colleagues’ names for £2m,” The Guardian (3 Sept. 2010), https://www.theguardian.com/world/2010/sep/03/mi6-man-jailed-selling-names.

[17] David Leigh, “Hacking: Met use Official Secrets Act to demand Guardian reveals sources,” The Guardian (16 Sept. 2011), https://www.theguardian.com/media/2011/sep/16/phone-hacking-met-court-order; “Metropolitan police drop action against the Guardian,” The Guardian (20 Sept. 2011), https://www.theguardian.com/media/2011/sep/20/metropolitan-police-drop-action-guardian; M. Zander, Dropping the Case, CL&J Crim. Law & Just. Weekly (2011), https://www.criminallawandjustice.co.uk/features/Dropping-Case; “Phone Hacking: Met admits it was wrong to use Official Secrets Act against Guardian,” The Telegraph (21 Sept. 2011) http://www.telegraph.co.uk/news/uknews/phone-hacking/8778216/Phone-Hacking-Met-admits-it-was-wrong-to-use-Official-Secrets-Act-against-Guardian.html; “CPS Statement on decision not to charge police officer or Amelia Hill,” The Guardian (29 May 2012), https://www.theguardian.com/media/2012/may/29/cps-statement-police-amelia-hill.

[18] See for example the arrest of two special branch officers (mentioned by Sandra Coliver from the Open Society Justice Initiative in her December 2013 Note on the OSA, The United Kingdom’s Official Secrets Act 1989 (Dec. 2013), http://www.right2info.org/resources/publications/national-security-page/uk-official-secrets-act-1989), and referenced at: “Police investigate secrets breach,” The Independent (9 Apr. 2011), http://www.independent.co.uk/news/uk/crime/police-investigate-secrets-breach-2265581.html; here “Military Officials Secret Act ‘breach’ investigated,” BBC News (9 Apr. 2011), http://www.bbc.co.uk/news/uk-13024330.

[19] M. Apuzzo, “C.I.A. Officer is Found Guilty in Leak Tied to Times Reporter,” N.Y. Times (Jan 26, 2015), https://www.nytimes.com/2015/01/27/us/politics/cia-officer-in-leak-case-jeffrey-sterling-is-convicted-of-espionage.html?_r=0.

[20] S. Shane, “Ex-N.S.A. Aide Gaines Plea Deal in Leak Case; Setback to U.S.,” N.Y. Times (June 9, 2011), http://www.nytimes.com/2011/06/10/us/10leak.html.

[21] P. Maas, “Destroyed by The Espionage Act,” The Intercept (Feb. 18, 2015), https://theintercept.com/2015/02/18/destroyed-by-the-espionage-act/.

[22] E. Pilkington, “Chelsea Manning released from military prison,” The Guardian (17 May 2017), https://www.theguardian.com/us-news/2017/may/17/chelsea-manning-released-from-prison

[23] S. Shane, “Ex-Officer is First From C.I.A. to Face Prison for a Leak,” N.Y. Times (Jan. 5, 2013), http://www.nytimes.com/2013/01/06/us/former-cia-officer-is-the-first-to-face-prison-for-a-classified-leak.html?pagewanted=all.

[24] “Edward Snowden: Leaks that exposed US spy program,” BBC News (17 Jan. 2014), http://www.bbc.com/news/world-us-canada-23123964.

[25] “Russia extends Edward Snowden’s asylum to 2020,” CNN (Apr. 4, 2017), http://www.cnn.com/2017/01/18/europe/russia-snowden-asylum-extension/.

[26] “Alleged NSA Leaker Reality Winner Appears in Federal Court, Trial Date Set,” NBC News (June 27, 2017), http://www.nbcnews.com/news/us-news/alleged-nsa-leaker-reality-winner-appears-federal-court-trial-date-n777401.

[27] J. Watts, “David Mirands: ‘They said I would be put in jail if I didn’t cooperate,’ The Guardian (19 Aug. 2013), https://www.theguardian.com/world/2013/aug/19/david-miranda-interview-detention-heathrow; “David Miranda detention: Q&A,” BBC News (19 Feb. 2014), http://www.bbc.co.uk/news/uk-23782782; O. Bowcott, “Terrorism Act incompatible with human rights, court rules in David Miranda case,” The Guardian (19 Jan. 2016), https://www.theguardian.com/world/2016/jan/19/terrorism-act-incompatible-with-human-rights-court-rules-in-david-miranda-case; D. Barrett, “David Miranda was carrying password for secret files on piece of paper,” The Telegraph (30 Aug. 2013), http://www.telegraph.co.uk/news/uknews/crime/10276460/David-Miranda-was-carrying-password-for-secret-files-on-piece-of-paper.html

[28] N. Watt, et al., “David Cameron pledges anti-terror law for internet after Paris attacks,” The Guardian (12 Jan. 2015), https://www.theguardian.com/uk-news/2015/jan/12/david-cameron-pledges-anti-terror-law-internet-paris-attacks-nick-clegg; J. Ball, “Cameron wants to ban encryption – he can say goodbye to digital Britain,” The Guardian (13 Jan 2015), https://www.theguardian.com/commentisfree/2015/jan/13/cameron-ban-encryption-digital-britain-online-shopping-banking-messaging-terror; A/ Travis, “Call for encryption ban pits Rudd against industry and colleagues,” The Guardian (26 Mar. 2017),

https://www.theguardian.com/technology/2017/mar/26/amber-rudd-battle-tech-firms-cabinet-whatsapp-david-davis

[29] FBI, Going Dark, https://www.fbi.gov/services/operational-technology/going-dark.

[30] Apple, A Message to Our Customers, Feb. 16, 2016, https://www.apple.com/customer-letter/

[31] 28 U.S. Code § 1651, https://www.law.cornell.edu/uscode/text/28/1651.

[32] 47 U.S.C. § 1001 et. seq., https://www.law.cornell.edu/uscode/text/47/1001.

[33] Apple Inc.’s Mot. to Vacate Order Compelling Apple Inc. to Assist Agents Search at 8, In re the Search of an Apple iPhone Seized During the Execution of a Search Warrant on a Black Lexus IS300, California License Plate 35KGD203, 16-cm-00010 (E.D. Cal. Mar. 25, 2016), ECF. No. 16

[34] See Clark D. Cunningham, “Apple and the American Revolution: Remembering Why we Have the Fourth Amendment,” The Yale Law Journal Forum (Oct. 26, 2016), http://www.yalelawjournal.org/pdf/CunninghamMacroedwithedits10.26.16_ajpyj3yx.pdf.

[35] A. Selyukh, “A Year After San Bernadino And Apple-FBI, Where Are We on Encryption?” NPR (Dec. 3, 2016), http://www.npr.org/sections/alltechconsidered/2016/12/03/504130977/a-year-after-san-bernardino-and-apple-fbi-where-are-we-on-encryption.

[36] https://www.congress.gov/bill/114th-congress/house-bill/4651/actions.

[37] R. Brandon, “New bill proposes national commission on digital security,” The Verge (Mar. 1, 2016), https://www.theverge.com/2016/3/1/11139838/apple-fbi-congress-national-commission-on-digital-security.

[38] Discussion Draft, BAG16460, https://www.burr.senate.gov/imo/media/doc/BAG16460.pdf.

[39] House Judiciary Committee & House Energy and Commerce Committee Encryption Working Group Year-End Report (Dec. 20, 2016), https://judiciary.house.gov/wp-content/uploads/2016/12/20161220EWGFINALReport.pdf.

[40]K. Bankston, “Let’s Have an Adult Conversation on Encryption,” Slate (Jan. 27, 2017), http://www.slate.com/articles/technology/future_tense/2017/01/the_encryption_conversation_needs_to_move_beyond_backdoors.html.