Are Bloggers Protected By Freedom Of The Press? Wikileaks, The NSA Files And The Unanswered Questions

There is- obviously- a lot of interweb chatter about GCHQ and the NSA. But these questions remain unanswered:

Freedom Of The Press

Okay, we get it: the media is protected when it comes to revealing secrets (at least most of the time- they can be prevented from reporting on secret trials; the UK Guardian was threatened with criminal prosecution and subsequently destroyed the NSA files in its possession; and of course there are D-notices). The key case in the USA is the Pentagon Papers case. The online versions of newspapers are protected too. But. Bloggers are technically journalists. And it’s increasingly difficult to categorise “blogs” and “online magazines/newspapers” nowadays, especially with group blogs, blogs that are successful and morph into online magazines, online news sites which are hosted on blogging platforms, etc. This raises two important questions.

If bloggers are protected by freedom of the press, this happens…

First, let’s go with the assumption that bloggers enjoy the same protection as the press (or that bloggers are categorised as ‘journalists’ and blogs are categorised as ‘press’ for this purpose). Now, what does that mean for the protection of websites? What does it mean for Wikileaks? Either websites would have to be protected too, or Assange would’ve avoided a lot of trouble if he’d only hosted Wikileaks on WordPress. Of course there’s the argument that Wikileaks didn’t report on anything- it revealed documents in their entirety. But what if in the future a whistleblower leaks files to a website instead of a newspaper, or creates a website to report on the files? You’ve got yourself one fascinating legal debate.

If bloggers aren’t protected, this other thing happens…

Blogging might come under freedom of speech rather than freedom of the press. So if bloggers can be prosecuted under the UK’s Official Secrets Act (and the US equivalent), how to we distinguish between blogs and the press? A whole load of case law could come out of trying to answer this question. Is it all in the name- that whether you call your publication a ‘blog’ or ‘site’ versus calling it a ‘newspaper’ or ‘magazine’ would determine if you’re protected or not? Or would it be the platform it’s hosted on- meaning that a Blogspot or WordPress platform, even if you’ve got your own domain, would spell your undoing? Whether a publication is run by an individual or a group might count, too. Recognition by professional journalism organisations might be a good indicator to use, as would journalism qualifications held by the site’s writers. But this is arguably elitist- even classist. It would protect middle-class bloggers while prosecuting bloggers who didn’t go to university (or study journalism at university). It’s also rather arbitrary; under such a law I’d be prosecuted as my degree isn’t media-related but my friend who studied journalism wouldn’t be. This would put a lot of privelege and power to influence our thinking in the hands of a single group (those with journalism degrees).

Whodunnit? Or, Is Obama Taking The Fall For A Previous President?

Did David Cameron know about GCHQ spying on us through our webcams and storing millions of sexually explicit photos of us? Did he order it? (And for that matter, why aren’t we more pissed off?) The Americans seem to have the right attitude with their demand for an investigation (though sadly the USA has lots of people who criticise Snowden, which is something we don’t have here.) But given that sniffer technology has been around since at least the early 1990s, are Americans right to blame Obama- or is he taking the fall for an earlier president? Blame should also be attached to the culpable; those who kept the secrets. Yes, your local MSP or MP had no more idea than the rest of us and was probably unintentionally spied on (that’s the whole point of mass surveillance- it gets everyone). But those in the upper circles of government knew what was going on. Politicians. Administrators. Ministers and their assistants. The families and (because some people just can’t keep their mouth shut) friends of all these people.

The fact that a lot of the programs started in 2008 suggests Tony Blair over here and Obama or possibly Bush over there started the programs. But we’ve no way of knowing if the surveillance was started much earlier. You don’t have to be one of the country’s top cyber criminals to tap someone’s webcam; this site claims to cater to beginner hackers and offers advice on how to information about webcam spying, using viruses to remotely load keyloggers, and other fascinatingly horrifying things (the spy drone thing is unimaginative, though. Even I’ve thought of tying a phone or covert cam to a toy helicopter- sticking it inside is just showing off).

(The obvious solution is to put tape over your webcam but this can leave a residue. Try these webcam covers– profits go to the Electronic Frontier Foundation (EFF) which campaigns for civil liberties in the digital world. Though it’s a US organisation, we Brits definitely have an interest in supporting such nonprofits, as the NSA encourages GCHQ in its current surveilling of us (as well as spying on people all over the world). The NSA also recruits GCHQ into being culpable re spying on Americans, and invading Americans’ privacy is something I can’t condone any more than the invasion of our own.))

But just as the NSA files are not up to date, so they might not go back all the way. The problem with analysing the files is that they were self-selected by one person so may not be representative; we also get the information second-hand through the filter of the Guardian’s agenda and profit concerns- the fact that by their own admission they have consulted with Downing Street and UK and US intelligence agencies over 100 times before publishing the NSA stories hardly inspires confidence. (Though I’m not saying they shouldn’t consult- national security and the safety of individual spy agency employees are very real concerns. The Guardian probably chooses to consult the government to avoid prosecution; as they have their own legal team the risk of government intimidation or exaggeration of legal consequences is probably minimal).This makes it difficult to deduce what kinds of programs GCHQ is likely to be deploying now: was Optic Nerve discontinued because the experiment is over forever? Or was it junked in favour of a more comprehensive program? Though it’s probably safe to assume that MMO games, webcams and popular apps will be targeted.

We need an investigation to find out 1) Whodunnit and 2) Whocontinuedit (probably lots of people had a hand in developing, refining, and testing the programs over the years.) Whodunnit could be anyone from Thatcher to Gordon Brown or perhaps it all started earlier, or maybe GCHQ acted without authorisation from government. But even if the investigation reveals everything the freedom-oriented want to know, we’ll probably have to wait much longer to know what would’ve happened if Edward Snowden had given one of his flash drives to a blogger.

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