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Muzzling the press

Spencer KimballAugust 21, 2013

Washington has distanced itself from the forced destruction of hard drives at the Guardian newspaper by Downing Street. In Great Britain, journalists often face weaker free press protections on national security issues.

Copies of the Guardian newspaper are displayed at a news agent in London August 21 2013. British Prime Minister David Cameron ordered his top civil servant to try to stop revelations flowing from the Guardian newspaper about U.S. and British surveillance programmes, two sources with direct knowledge of the matter said. REUTERS/Suzanne Plunkett (BRITAIN - Tags: MEDIA POLITICS)
Image: Reuters/Suzanne Plunkett

After the Guardian published a series of articles revealing British-complicity in US-led mass telecommunications surveillance, Downing Street began to turn up the heat on the London-based newspaper, forcing its editor, Alan Rusbridger, to destroy computer hard drives under the threat of legal action.

The hard drives contained secret information leaked to the Guardian through its Brazil-based reporter Glenn Greenwald by the runaway former US intelligence contractor Edward Snowden, who has been granted temporary asylum in Russia.

The Guardian has used the top-secret material to publish a series of articles describing secret surveillance programs at the US National Security Agency as well as GCHQ, the British spy agency the focuses on communications intelligence.

Copies of the files destroyed hard drives in London remain intact in Brazil and the United States, according to Rusbridger, who called the destruction a "peculiarly pointless piece of symbolism."

LONDON, ENGLAND - DECEMBER 04: Alan Rusbridger, the editor of the Guardian leaves Downing Street on December 4, 2012 in London, England. Most editors of the national daily newspapers are meeting the Prime Minister David Cameron and culture secretary Maria Miller in Downing Street to discuss ideas for a new system of press regulation. (Photo by Dan Kitwood/Getty Images)
Rusbridger said the Guardian will continue its reporting from the United StatesImage: Getty Images/Dan Kitwood

Copies of files still exist

The Guardian justified its decision to comply with the British government's demands by saying that it wanted to avoid possible prosecution under the Official Secrets Act or the law of confidence.

The 1989 Official Secrets Act criminalizes the unauthorized disclosure of a host of information related to defense, diplomacy, intelligence and security. The law of confidence, on the other hand, is a much broader civil law provision under which a party can be sued for disclosing confidential information.

"I explained to the British authorities that there were other copies in America and Brazil, so they wouldn't be achieving anything," Rusbridger said in a video published Tuesday on the Guardian's website.

"But once it was obvious that they would be going to law, I preferred to destroy our copy rather than hand it back to them or allow the courts to freeze our reporting," he said.

The hard drives were destroyed on July 20. Rusbridger has not commented on why the destruction of the hard drives was revealed a month after the fact.

Qualified free speech

Freedom of expression is protected in Britain under Article 10 of the European Convention on Human Rights. But the article contains exceptions on the grounds of national security. According to Helen Fenwick, the Guardian likely would have lost its case had it gone to court.

"They could argue, for example, that source protection or confidential information of journalists is threatened if governments can seize hard disks or demand that they should be destroyed," Fenwick, an expert on media law and civil liberties at Durham Law School, told DW.

epa03830882 A handout picture provided by Brazilian media network 'O Globo' shows Brazilian citizen David Miranda (L) and his partner Glenn Greenwald (R) as they arrive at international airport Galeao Tom Jobim in Rio de Janeiro, Brazil, 19 August 2013. Brazil on 19 August 2013 has criticized Britain over the detention 'without justification' of the partner of Guardian journalist Glenn Greenwald, who has written about secret US cyber-spying programmes leaked to him by whistleblower Edward Snowden. Brazilian citizen David Miranda, 28, was held for nearly nine hours at London's Heathrow airport under Schedule 7 of the Terrorism Act before being released without charge, British police sai EPA/Marcelo Piu / HANDOUT BRAZIL OUT HANDOUT EDITORIAL USE ONLY/NO SALES +++(c) dpa - Bildfunk+++
Glenn Greenwald's partner, David Miranda, was held by UK authorities for nine hours under the Terrorism ActImage: picture-alliance/dpa

"[But] if the action of the government was necessary and proportionate for the preservation of national security, even though it was a very serious invasion of freedom of expression, [the Guardian] would probably fail," she said.

Historical precedent

In 1997, David Shayler, a former officer of the UK's domestic spy agency MI5, passed on secret documents to the Mail on Sunday newspaper. Facing prosecution under the Official Secrets Act, Shayler argued that his disclosure to the press was protected under the 1998 UK Human Rights Act, which implemented the European Convention on British soil.

But the court ultimately ruled that this argument was irrelevant, found Shayler guilty and sentenced him to six years in prison.

"There is no defense that it's in the public interest to disclose information; there is no defense that the information itself is not damaging to national security," Ian Cram, an expert on media and constitutional law at the University of Leeds' Law School, told DW.

"It's a very broadly defined offense that captures a lot of people." Cram added. "It's initially aimed at the Edward Snowdens themselves, but it captures journalists and others once the journalist comes into possession of the information."

US distances itself from UK

The United States, meanwhile, has distanced itself from events at the Guardian. White House spokesman Josh Earnest said on Tuesday that the Obama administration would be very hesitant to destroy newspaper hard drives, even on national security grounds.

"That's very difficult to imagine a scenario in which that would be appropriate," Earnest told a press conference in Washington.

But the administration has come under growing scrutiny for its relentless prosecution of government employees who leak national security information to the press. Since 2009, the White House has used the 1917 Espionage Act to prosecute seven cases of national security leaks, twice the number of all previous administrations combined.

Glenn Greenwald, the blogger and journalist who broke the U.S. National Security Agency (NSA) surveillance scandal, uses his lapton after an exclusive interview with Reuters in Rio de Janeiro July 9, 2013. Greenwald, an American citizen who works for Britain's Guardian newspaper and lives in Rio de Janeiro, was the journalist who first revealed classified documents provided by fugitive former intelligence contractor Edward Snowden, outlining the extent of U.S. communications monitoring activity at home and abroad. Greenwald talked about the NSA leaks by Snowden during the interview. REUTERS/Sergio Moraes (BRAZIL - Tags: MILITARY POLITICS MEDIA CRIME LAW)
In Brazil, Greenwald has copies of the files that were destroyed in LondonImage: Reuters

On Wednesday, US soldier Bradley manning was sentenced to 35 years in prison after being found guilty last month of 20 offenses, including six violations of the Espionage Act.

'Impregnable First Amendment'

Leak prosecutions under the Obama administration have focused overwhelmingly on civil servants - not the media. The journalists in the United States who receive leaked information generally enjoy a broader right to freedom of the press under the First Amendment and prior restraint protections than government employees. Prior restraint occurs when a government forces a publication to refrain from printing certain information.

"You've got in the US system a virtually impregnable First Amendment bar on prior restraint," Cram said. "This goes back to the Pentagon Papers case in the early 1970s."

In 1971, the Nixon administration sought to stop the New York Times from publishing the Pentagon Papers, a secret history of the Vietnam War leaked to the press by military analyst Daniel Ellsberg. But the Supreme Court ultimately ruled that the government had not met the burden of proof to stop the Times from publishing the material.

These protections, however, have been called into question as of late. Last May, the Justice Department decided to name James Rosen, Fox News' Washington D.C. correspondent, as a co-conspirator in a leak case. He was accused of receiving and publishing classified information on North Korean preparations for a nuclear test. The case is ongoing.