Freedom of the press in the Age of NSA

excerpt from Peter Maass, “How Laura Poitras Helped Snowden Spill His Secrets,” The New York Times, August 13, 2013:

…in 2007 — months after she was first detained — investigators from the Department of Justice’s Joint Terrorism Task Force interviewed them, inquiring about Poitras’s activities in Baghdad that day. Poitras was never contacted by those or any other investigators, however. “Iraq forces and the U.S. military raided a mosque during Friday prayers and killed several people,” Poitras said. “Violence broke out the next day. I am a documentary filmmaker and was filming in the neighborhood. Any suggestion I knew about an attack is false. The U.S. government should investigate who ordered the raid, not journalists covering the war.”

In June 2006, her tickets on domestic flights were marked “SSSS” — Secondary Security Screening Selection — which means the bearer faces extra scrutiny beyond the usual measures. She was detained for the first time at Newark International Airport before boarding a flight to Israel, where she was showing her film. On her return flight, she was held for two hours before being allowed to re-enter the country. The next month, she traveled to Bosnia to show the film at a festival there. When she flew out of Sarajevo and landed in Vienna, she was paged on the airport loudspeaker and told to go to a security desk; from there she was led to a van and driven to another part of the airport, then taken into a room where luggage was examined.

“They took my bags and checked them,” Poitras said. “They asked me what I was doing, and I said I was showing a movie in Sarajevo about the Iraq war. And then I sort of befriended the security guy. I asked what was going on. He said: ‘You’re flagged. You have a threat score that is off the Richter scale. You are at 400 out of 400.’ I said, ‘Is this a scoring system that works throughout all of Europe, or is this an American scoring system?’ He said. ‘No, this is your government that has this and has told us to stop you.’ ”

After 9/11, the U.S. government began compiling a terrorist watch list that was at one point estimated to contain nearly a million names. There are at least two subsidiary lists that relate to air travel. The no-fly list contains the names of tens of thousands of people who are not allowed to fly into or out of the country. The selectee list, which is larger than the no-fly list, subjects people to extra airport inspections and questioning. These lists have been criticized by civil rights groups for being too broad and arbitrary and for violating the rights of Americans who are on them.

In Vienna, Poitras was eventually cleared to board her connecting flight to New York, but when she landed at J.F.K., she was met at the gate by two armed law-enforcement agents and taken to a room for questioning. It is a routine that has happened so many times since then — on more than 40 occasions — that she has lost precise count. Initially, she said, the authorities were interested in the paper she carried, copying her receipts and, once, her notebook. After she stopped carrying her notes, they focused on her electronics instead, telling her that if she didn’t answer their questions, they would confiscate her gear and get their answers that way. On one occasion, Poitras says, they did seize her computers and cellphones and kept them for weeks. She was also told that her refusal to answer questions was itself a suspicious act. Because the interrogations took place at international boarding crossings, where the government contends that ordinary constitutional rights do not apply, she was not permitted to have a lawyer present.

“It’s a total violation,” Poitras said. “That’s how it feels. They are interested in information that pertains to the work I am doing that’s clearly private and privileged. It’s an intimidating situation when people with guns meet you when you get off an airplane.”

Though she has written to members of Congress and has submitted Freedom of Information Act requests, Poitras has never received any explanation for why she was put on a watch list. “It’s infuriating that I have to speculate why,” she said. “When did that universe begin, that people are put on a list and are never told and are stopped for six years? I have no idea why they did it. It’s the complete suspension of due process.” She added: “I’ve been told nothing, I’ve been asked nothing, and I’ve done nothing. It’s like Kafka. Nobody ever tells you what the accusation is.”

After being detained repeatedly, Poitras began taking steps to protect her data, asking a traveling companion to carry her laptop, leaving her notebooks overseas with friends or in safe deposit boxes. She would wipe her computers and cellphones clean so that there would be nothing for the authorities to see. Or she encrypted her data, so that law enforcement could not read any files they might get hold of. These security preparations could take a day or more before her travels.

It wasn’t just border searches that she had to worry about. Poitras said she felt that if the government was suspicious enough to interrogate her at airports, it was also most likely surveilling her e-mail, phone calls and Web browsing. “I assume that there are National Security Letters on my e-mails,” she told me, referring to one of the secretive surveillance tools used by the Department of Justice. A National Security Letter requires its recipients — in most cases, Internet service providers and phone companies — to provide customer data without notifying the customers or any other parties. Poitras suspected (but could not confirm, because her phone company and I.S.P. would be prohibited from telling her) that the F.B.I. had issued National Security Letters for her electronic communications.

Once she began working on her surveillance film in 2011, she raised her digital security to an even higher level. She cut down her use of a cellphone, which betrays not only who you are calling and when, but your location at any given point in time. She was careful about e-mailing sensitive documents or having sensitive conversations on the phone. She began using software that masked the Web sites she visited. After she was contacted by Snowden in 2013, she tightened her security yet another notch. In addition to encrypting any sensitive e-mails, she began using different computers for editing film, for communicating and for reading sensitive documents (the one for sensitive documents is air-gapped, meaning it has never been connected to the Internet).

These precautions might seem paranoid — Poitras describes them as “pretty extreme” — but the people she has interviewed for her film were targets of the sort of surveillance and seizure that she fears. William Binney, a former top N.S.A. official who publicly accused the agency of illegal surveillance, was at home one morning in 2007 when F.B.I. agents burst in and aimed their weapons at his wife, his son and himself. Binney was, at the moment the agent entered his bathroom and pointed a gun at his head, naked in the shower. His computers, disks and personal records were confiscated and have not yet been returned. Binney has not been charged with any crime.

Jacob Appelbaum, a privacy activist who was a volunteer with WikiLeaks, has also been filmed by Poitras. The government issued a secret order to Twitter for access to Appelbaum’s account data, which became public when Twitter fought the order. Though the company was forced to hand over the data, it was allowed to tell Appelbaum. Google and a small I.S.P. that Appelbaum used were also served with secret orders and fought to alert him. Like Binney, Appelbaum has not been charged with any crime.

Poitras endured the airport searches for years with little public complaint, lest her protests generate more suspicion and hostility from the government, but last year she reached a breaking point. While being interrogated at Newark after a flight from Britain, she was told she could not take notes. On the advice of lawyers, Poitras always recorded the names of border agents and the questions they asked and the material they copied or seized. But at Newark, an agent threatened to handcuff her if she continued writing. She was told that she was being barred from writing anything down because she might use her pen as a weapon.

“Then I asked for crayons,” Poitras recalled, “and he said no to crayons.”

She was taken into another room and interrogated by three agents — one was behind her, another asked the questions, the third was a supervisor. “It went on for maybe an hour and a half,” she said. “I was taking notes of their questions, or trying to, and they yelled at me. I said, ‘Show me the law where it says I can’t take notes.’ We were in a sense debating what they were trying to forbid me from doing. They said, ‘We are the ones asking the questions.’ It was a pretty aggressive, antagonistic encounter.” …

read the full article at The New York Times

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