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European, U.S. media face new tests with NSA spying

Published: Sunday, Nov. 17, 2013 5:30 a.m. CST

MADRID – The spying revelations by former National Security Agency contractor Edward Snowden have made it a high-pressure, high-stakes time to be a top media executive.

In Britain, the editor of the Guardian pulverized entire hard drives of data leaked by Snowden to keep the government from seizing them.

In the United States, The New York Times pointed out in a major NSA expose this month that it agreed to self-censorship of “some details that officials said could compromise intelligence operations.”

And in Spain, the El Mundo newspaper said last week it would turn over Snowden documents to prosecutors inquiring whether the privacy rights of Spaniards had been violated.

As revelations about the staggering scope of the NSA’s surveillance have leaked out, newsroom leaders around the world have been weighing ethical decisions over how much they should reveal about intelligence-gathering capabilities. Their decisions are guided, in part, by media protection laws that vary widely from country to country.

“It’s a new era. There are new questions coming up and there are no clear answers here,” said Robert Picard, a specialist on media policy and director of research at the University of Oxford’s Reuters Institute. “The media are trying to navigate it and it is not comfortable. You will get different opinions on the decision-making in different newsrooms and within the same newsroom.”

The huge number of Snowden documents has generated a barrage of exclusive stories in the Guardian and The Washington Post, along with a stream of revelations about the NSA surveillance in countries such as France, Germany, Spain and Brazil. In some cases, publications that normally compete on stories have teamed up to get the news out.

Britain’s Official Secrets Act guards against the dissemination of confidential material, and the government’s response to the Snowden leaks has become stormier and stormier. When Britain’s deputy national security adviser warned that agents would confiscate the Guardian’s hard drives containing Snowden files, editor Alan Rusbridger made the deal to have them destroyed.

“I would rather destroy the copy than hand it back to them or allow the courts to freeze our reporting,” he said in August. “I don’t think we had Snowden’s consent to hand the material back, and I didn’t want to help the U.K. authorities know what he had given us.”

The fact that other copies of the material existed in the United States and Brazil meant he could delete the data held in Britain without fear that the story would die with it, he added.

As the pressure on the Guardian increased, the paper turned to The New York Times and ProPublica, a U.S.-based nonprofit journalism group. The decision to collaborate was partly technical, reporter James Ball told an audience in London. But it was also a nod to what he called “First Amendment issues,” noting that being based in the United States gave those working on the story the protection of America’s press freedom laws.

That has its limits as well. When a recent New York Times piece on the NSA appeared to disclose the first names of intelligence analysts, some British lawmakers began wondering whether the paper was playing fast and loose with the names of agents at GCHQ, the U.K government’s electronic eavesdropping agency. They’ve since summoned Rusbridger, the Guardian’s editor, to testify before a Parliamentary committee. Britain’s Metropolitan Police have also confirmed that detectives are investigating the disclosures.

In France and Spain, the Snowden disclosures have so far revealed that the NSA captured metadata from millions of telephone calls, while in Germany they exposed U.S. monitoring of Chancellor Angela Merkel’s cellphone.

While European media must be wary about publishing information about their intelligence agencies because of legal consequences, the possibility that citizens’ privacy rights might have been violated is another major concern, said Jane Kirtley, director of the University of Minnesota’s Silha Center for the Study of Media Ethics and Law.

“If you look at how privacy protection has developed in Europe, countries speak of privacy as a fundamental right, which is not a concept we see in England or the United States,” she said. “The justification that the European media can give is that ‘We are helping to protect this fundamental right to privacy by revealing the surveillance going on.’”

El Mundo’s chief editor, Vicente Lozano Garcia, said his newspaper had no problem turning over Snowden documents to Spanish prosecutors because it had called for an investigation to determine whether the spying broke Spanish laws. He added the only information given to them had already been published and did not involve secrecy because the source – Snowden – was known.

After El Mundo and France’s Le Monde published their stories on NSA spying, the NSA revealed that the monitoring in those countries was done in coordination with NATO allies.

Le Monde’s chief editor, Natalie Nougayrede, said the paper has not come under pressure from French authorities to turn over documents or to withhold information. Still, she said the paper was keeping the documents “in a safe place” that she would not describe.

“Even if there were demands and pressure, I would be absolutely adamant that we would just continue our work,” Nougayrede said.

The German government said Der Spiegel magazine, which has published material from Snowden, approached it around Oct. 16 with what it believed was the evidence showing the NSA had monitored Merkel’s cellphone.

After examining the material, Germany announced Oct. 23 that Merkel had called President Barrack Obama to demand clarification. Der Spiegel then posted the material on its website and in its print version.

Although the story unleashed a firestorm in Germany and around the world, Der Spiegel’s handling of the news has drawn little if any criticism, neither for tipping off the government nor for publishing an ally’s secrets.

“The autonomy of the press is ensured in Germany,” said Klaus-Dieter Altmeppen, a professor for communication studies at the Catholic University of Eichstaett. “Therefore, we don’t have the kind of problems between the media and the government here that exist in other countries when it comes to the publication of the NSA files.”

The biggest change for news organizations publishing Snowden documents is that it marks a huge step forward in their access to intelligence information. As they have done in the past, publications often query government officials before making a decision on what to release.

Barton Gellman, the Washington Post reporter who broke the story about NSA’s PRISM data-gathering program, said at a conference last month that U.S. government officials had asked him not to publish the names of Yahoo Inc., Google Inc. and seven other Internet companies participating in the NSA program.

Gellman said he refused because that would have undermined the Post’s principal mission of holding U.S. institutions accountable. Including the technology companies’ names propelled them to argue for greater transparency about NSA’s operations to show customers that they were taking privacy concerns seriously, he said.

Gellman said he had “long conversations” with U.S. government officials about the NSA documents and agreed there was information in them that raised legitimate U.S. security concerns.

“We quickly agreed that that would not be in the story and it turns out the Guardian made substantially identical decisions without any mutual consultation,” Gellman said.

The New York Times has not published as many articles based on Snowden’s information as the Guardian.

Jill Abramson, the executive editor of the Times, said that she’d been approached by a British diplomat in Washington and asked to relinquish the Snowden documents. She said she refused.

Abramson also told BBC’s “Newsnight” television program that she was distressed to see criticism of the reporters breaking the NSA spying stories.

“We balance the need to inform the public against possible harm to national security, and we do that very seriously and soberly,” she said.

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