In Germany, the Federal Intelligence Agency had been spying on journalists and has placed spies in newsrooms to identify sources.

In the Netherlands, the government monitored telephones at De Telegraaf in an attempt to determine the sources for a story, then arrested and jailed journalists when the surveillance failed to identify the sources.

In Latvia, the Financial Police wiretapped the telephones of a television reporter and then leaked the tapes to the media.

Confidential sources are the lifeblood of many reporters’ work. But as these and other cases show, surveillance in the name of security is undermining this essential right in many countries.

Legal Protection of Sources

There is strong international recognition of the importance of the need for journalists to protect their confidential sources of information. The UN Special Representative on Freedom of Expression has described the protection of sources as “primary importance for journalists” while the European Court of Human Rights has ruled that it is “one of the basic conditions for press freedom”. It has also been recognized by numerous other international governmental organizations including the Organisation of American States (OAS), the Organisation for Security and Cooperation in Europe (OSCE), the Council of Europe and the African Union as a necessary requirement for free press.

The right is also widely recognized on the national level. Over 80 countries around the world have adopted legislation on protection of sources while a handful even specifically include it in their constitutions. The courts in many other countries have found the right in their protections on free speech.

Increasing Surveillance

In spite of the strong legal protections available in both national and international laws, governments have been increasing their surveillance of journalists as a means to identify their sources, especially following the 9/11 attacks. There has been a weakening of the enforcement of both the sources legislation and the existing wiretap laws.

In Germany, an extensive parliamentary report released in 2006 found that the Federal Intelligence Agency (the BND) had been illegally spying on journalists, including placing spies in newsrooms for over a decade to identify sources.

In the Netherlands, which has no protection of sources legislation, the government monitored the telephones of journalists from the newspaper De Telegraaf who had revealed that a criminal kingpin was obtaining confidential information while still in jail. The tap was approved by an appeals court in May 2006. After the tap was unsuccessful in identifying the source, the police arrested the journalists and imprisoned them for a day to determine their sources.

In Latvia, the Financial Police wiretapped the telephones of a television reporter Ilze Jaunalksne and then leaked the tapes to the media. The judge who authorized the taps has been removed and charges have been filed against the police officers. The journalist was awarded €42,000 in damages in February 2007.

In other countries, there are proposals to adopt laws to weaken limits on wiretapping. The newly elected Conservative government in Sweden announced legislation in 2007 to allow the National Defence Radio Establishment to monitor all international calls and communications. Even the legal head of the intelligence service called it “completely foreign to our form of government". The government claims that it only legalizes what the Defense Ministry has been doing for decades.

Building in wiretapping

In 1994, the US adopted the Communications Assistance for Law Enforcement Act (CALEA), which required that all telephone equipment manufacturers selling phone equipment build in wiretapping capabilities. Following this, the US government began a campaign of pressuring national governments and international organizations such as the G-8, the International Telecommunications Union and the Council of Europe to promote surveillance either through setting technical standards or enacting legislation to promote surveillance. One success was the Council of Europe’s Cybercrime Treaty.

This surveillance standard is now a de facto world standard, sold in all telecommunications equipment and it is now being extended to the Internet and other communications technologies. The legal efforts have also been successful. Many nations including the UK and South Africa have now adopted laws similar to CALEA and Zimbabwe and Indonesia are considering doing the same.

The new surveillance capabilities make it easier for anyone to intercept communications. In Greece, it was discovered in 2006 that unknown persons had broken the security of cell phone operator Vodafone and used the built-in surveillance capabilities of the Ericsson equipment to tap the communications of over 100 prominent people including Prime Minister Costas Karamanlis and several journalists. In Italy, the transcripts of widespread illegal taps and surveillance of journalists, sports figures and politicians were leaked to the press in 2006.

Transactional information

The new digital age that makes it easier to communicate also makes it easier to track who is communicating. These digital records can include detailed records on calling information, including the location of mobile phone users when calls are made, records of emails sent and received and web sites visited. Search engine company Google retains records of all searches indefinitely, although they recently promised to reduce the identifiable information to two years.

These records can be very sensitive and reveal both journalists’ sources and their current and future research projects. In China, American Internet company Yahoo! revealed the email and user information of journalist Shi Tao to the Chinese government which resulted in his imprisonment for a ten year sentence. In the US, a court of appeals ruled in 2006 that the New York Times could not protect its telephone records in an investigation on who leaked information to it about an anti-terrorism investigation. In the UK, police in Suffolk obtained the phone records of a journalist from the East Anglian Evening Star when he telephoned the police to inquiry about a "cold case" to discover the source of his information.

This problem is not just limited to governments obtaining information. In the US, private investigators working for technology company Hewlett-Packard illegally obtained the telephone records of several journalists following stories about HP board meetings. In Finland, the former CEO and other employees of telecommunications company Sonera and several government officials were convicted in 2005 of illegally obtaining the phone records of two journalists from Helsingin Sanomat and employees of the Sonera to discover who was the source of a leak.

The ease of access to information about journalists and their activities is compounded by the adoption of data retention laws that require telecommunications providers to automatically collect and retain all information on all users' activities. This information includes details about emails sent and received (or at least the information on the sender and recipients, subject, the names of attachments and the size of the message), web sites visited, and instant messages. Mobile telephone companies are required to collect information on calls and messages sent and received including the location of the persons when they were using their system. The length of the retention can last up to five years.

In 2005, the European Union adopted a directive on data retention requiring that all EU countries adopt laws on data retention to hold information for between 6 months and 2 years. Some countries such as Poland are demanding the right to hold the information for up to 15 years. The Directive goes into effect in September 2007 and by March 2009 all EU countries must have capacity to retain the data on Internet access, telephony and e-mail. It is now being challenged in court in Ireland. In the US, there is no current law on data retention. President Bush personally pressured the EU to adopt the Directive. A bill was recently introduced but now that the Congress is controlled by the Democrats, it is less likely to be approved.

Conclusion

Due to technological advances, it is becoming increasingly more difficult to ensure that the identity of sources is being protected. Lawmakers need to resist efforts to track all persons in the name of the war on terror and to ensure that these advances do not undermine legal protections of journalists. In the meanwhile, journalists and their sources are going to need to take greater care when meeting and communicating to limit the possibility of being technologically tracked.


David Banisar is the Director of the Freedom of Information Project at Privacy International, a UK based human rights group and a Visiting Research Fellow at the Department of Law, University of Leeds.