A free press is essential. In fact, it is the very backbone of a truly free, democratic society. However, journalists and the press have come under increased scrutiny in recent years as governments have circled the wagons over surveillance in the name of national security and, at the same time, sought to stem the flow of classified information provided to journalists by whistleblowers.
We are now treated to some new wrinkles in the controversy taking shape “down under”. Australian Prime Minister, Tony Abbot, in an overture to journalists aimed at offering them broader protection from prosecution, has agreed to legislation which would compel government agencies to seek warrants before accessing journalists’ metadata.
This has long been a bone of contention between government and the Fourth Estate, and comes in the form of a deal for which the quid pro quo is the likely passage of the federal government’s data retention program. In the government’s proposed scheme, telecommunications companies must agree to store certain types of phone and web data for two years.
The proposal on its face has merit and warrants approval if only because it will lift the Damocles Sword hanging over journalists and, very importantly, their sources – a major consideration for any journalists worth their salt.
The details are, at present, vague, and must be ironed, out but at the heart of the law is a provision that will “require agencies to obtain a warrant in order to access a journalists’ metadata for the purpose of identifying a source.” The government’s goal is to staunch the leaking of information with impunity by whistleblowers. While the proposed legislation is a compromise and a good first step for journalists, questions still abound about the scope of the protection, and how the program will actually work, before one can fully judge whether this measure really provides journalists with the kind of cover they need to effectively do their jobs.
Among the questions at the heart of the matter is, in this digital day and age of fast-paced, ever changing news, what is a journalist, and who is entitled to protection? Are bloggers or pamphleteers journalists? Australia grappled with this issue when it changed The Evidence Act 1995 to enhance protection for journalists, opining that a journalist is,
“[Anyone] who is engaged and active in the publication of news and who may be given information by an informant in the expectation that the information may be published in a news medium.” This essentially echoed a century- old opinion by the US Supreme Court that “the press, in its historic connotation, comprehends every sort of publication which affords a vehicle of information and opinion.”
It seems that bloggers are covered…. Law enforcement agencies may still be able to quash leaks because not all information flows through or is conveyed by a journalist. Governments could divine the identity of potential sources by themselves, and perhaps access their metadata without a warrant.
As previously stated, this is not yet a law, and details need to be ironed out. Another sticking point revolves around the revealing of whether authorization to access a person’s data need be disclosed, as there are broad secrecy provisions that prevent agencies from confirming or denying the existence of permission to access a journalists’ metadata and prior efforts by journalists to discern such information has been heretofore unsuccessful. The journalists’ union, the Media, Entertainment and Arts Alliance (MEAA) argues that it should be made aware of warrants being executed so that it can challenge them in court.
A question also arises because, in its present form, the proposed measure pertains to law enforcement agencies, but not intelligence agencies. Will the Australian Security Intelligence Organisation (ASIO) – which falls outside the proposed authorization regime – be subject to the same requirements for a warrant? Certainly this notorious Five Eyes apparatus would have an interest at some point in exposing confidential sources, so how will journalists and their sources be protected from this sort of scrutiny?
Because of this and other concerns, the MEAA has criticized the prime minister’s plan, arguing that it does not go far enough. For example, they would like to see a restriction imposed upon telecommunication companies disclosing pertinent information about them, even with a warrant.
Suffice to say, this proposed legislation leaves much to be desired, but any good legislation entails compromise – a give and take. In these dangerous times it is unwise to totally hamstring authorities conducting a bona fide investigation, but we must keep in mind that it is a free press which often passes judgement on whether something is bona fide or not, and thus must be allowed to operate in an uninhibited, transparent fashion.