snowden, greenwald, miranda, and the creeping police state: one month later, we should still be disturbed

One month ago, something happened that should trouble us gravely.

Something happened that people who believe in democracy and free speech and an independent media and civil liberties and human rights should find appalling and unacceptable.

It's old news by now; anything that occurs one month ago is ancient history. I wasn't able to blog about it at the time, and in a way that is good. Events of great significance occur - our rights continue to shrink, governmental powers continue to expand, fascism and police states continue to be normalized - and we rarely have a moment to process one slippery step before we slide into another.

On August 18, 2013, a man named David Miranda was taken into custody at London's Heathrow Airport. Miranda is the partner of journalist Glenn Greenwald. And Greenwald, you'll recall, is one of the two people with whom Edward Snowden entrusted his evidence of the massive domestic spy campaign being perpetrated by the US government, with the help of Microsoft, Google, Verizon, Yahoo, among other of the world's largest corporations.

Miranda was detained for nine hours under "schedule 7", some fine print in the UK's sweeping so-called anti-terrorism laws that gives police broad powers and ordinary citizens little recourse. Throughout, Miranda was denied the right to his own counsel. He was not charged with an offense. Media he was carrying was confiscated, but we know that doesn't take nine hours to accomplish.

As I said, I'm sure you read about Miranda's detention when the story broke in August, and I hope you are not so jaded that you merely shrugged, without finding it truly chilling. In any case, for the sake of this post, let's take a moment to think about it and let it sink in all over again.

The government has a massive, secret program through which it spies - constantly and without cause or provocation - on its own citizens. Someone inside the survellience program courageously comes forward to reveal it. In doing so, the whistleblower risks everything. He must leave his country, must fight for sanctuary and safety, must start an entirely new life.

This whistleblower, Edward Snowden, entrusts two people - one journalist and one filmmaker - with the evidence he has gathered. And the partner of the journalist is detained under anti-terrorism laws.

Large numbers of ink and pixels have been expended on this topic, but I saw none more responsible and less equivocal than those from Guardian editor Alan Rusbridger. He writes:

On Sunday morning David Miranda, the partner of Guardian columnist Glenn Greenwald, was detained as he was passing through Heathrow airport on his way back to Rio de Janeiro, where the couple live. Greenwald is the reporter who has broken most of the stories about state surveillance based on the leaks from the former NSA contractor Edward Snowden. Greenwald's work has undoubtedly been troublesome and embarrassing for western governments. But, as the debate in America and Europe has shown, there is considerable public interest in what his stories have revealed about the right balance between security, civil liberties, freedom of speech and privacy. He has raised acutely disturbing questions about the oversight of intelligence; about the use of closed courts; about the cosy and secret relationship between government and vast corporations; and about the extent to which millions of citizens now routinely have their communications intercepted, collected, analysed and stored.

In this work he is regularly helped by David Miranda. Miranda is not a journalist, but he still plays a valuable role in helping his partner do his journalistic work. Greenwald has his plate full reading and analysing the Snowden material, writing, and handling media and social media requests from around the world. He can certainly use this back-up. That work is immensely complicated by the certainty that it would be highly unadvisable for Greenwald (or any other journalist) to regard any electronic means of communication as safe. The Guardian's work on the Snowden story has involved many individuals taking a huge number of flights in order to have face-to-face meetings. Not good for the environment, but increasingly the only way to operate. Soon we will be back to pen and paper.

Miranda was held for nine hours under schedule 7 of the UK's terror laws, which give enormous discretion to stop, search and question people who have no connection with "terror", as ordinarily understood. Suspects have no right to legal representation and may have their property confiscated for up to seven days. Under this measure – uniquely crafted for ports and airport transit areas – there are none of the checks and balances that apply once someone is in Britain proper. There is no need to arrest or charge anyone and there is no protection for journalists or their material. A transit lounge in Heathrow is a dangerous place to be.

Miranda's professional status – much hand-wringing about whether or not he's a proper "journalist" – is largely irrelevant in these circumstances. Increasingly, the question about who deserves protection should be less "is this a journalist?" than "is the publication of this material in the public interest?"

The detention of Miranda has rightly caused international dismay because it feeds into a perception that the US and UK governments – while claiming to welcome the debate around state surveillance started by Snowden – are also intent on stemming the tide of leaks and on pursuing the whistleblower with a vengeance. That perception is right. Here follows a little background on the considerable obstacles being placed in the way of informing the public about what the intelligence agencies, governments and corporations are up to.

A little over two months ago I was contacted by a very senior government official claiming to represent the views of the prime minister. There followed two meetings in which he demanded the return or destruction of all the material we were working on. The tone was steely, if cordial, but there was an implicit threat that others within government and Whitehall favoured a far more draconian approach.

The mood toughened just over a month ago, when I received a phone call from the centre of government telling me: "You've had your fun. Now we want the stuff back." There followed further meetings with shadowy Whitehall figures. The demand was the same: hand the Snowden material back or destroy it. I explained that we could not research and report on this subject if we complied with this request. The man from Whitehall looked mystified. "You've had your debate. There's no need to write any more."

During one of these meetings I asked directly whether the government would move to close down the Guardian's reporting through a legal route – by going to court to force the surrender of the material on which we were working. The official confirmed that, in the absence of handover or destruction, this was indeed the government's intention. Prior restraint, near impossible in the US, was now explicitly and imminently on the table in the UK. But my experience over WikiLeaks – the thumb drive and the first amendment – had already prepared me for this moment. I explained to the man from Whitehall about the nature of international collaborations and the way in which, these days, media organisations could take advantage of the most permissive legal environments. Bluntly, we did not have to do our reporting from London. Already most of the NSA stories were being reported and edited out of New York. And had it occurred to him that Greenwald lived in Brazil?

The man was unmoved. And so one of the more bizarre moments in the Guardian's long history occurred – with two GCHQ security experts overseeing the destruction of hard drives in the Guardian's basement just to make sure there was nothing in the mangled bits of metal which could possibly be of any interest to passing Chinese agents. "We can call off the black helicopters," joked one as we swept up the remains of a MacBook Pro.

Whitehall was satisfied, but it felt like a peculiarly pointless piece of symbolism that understood nothing about the digital age. We will continue to do patient, painstaking reporting on the Snowden documents, we just won't do it in London. The seizure of Miranda's laptop, phones, hard drives and camera will similarly have no effect on Greenwald's work.

The state that is building such a formidable apparatus of surveillance will do its best to prevent journalists from reporting on it. Most journalists can see that. But I wonder how many have truly understood the absolute threat to journalism implicit in the idea of total surveillance, when or if it comes – and, increasingly, it looks like "when".

We are not there yet, but it may not be long before it will be impossible for journalists to have confidential sources. Most reporting – indeed, most human life in 2013 – leaves too much of a digital fingerprint. Those colleagues who denigrate Snowden or say reporters should trust the state to know best (many of them in the UK, oddly, on the right) may one day have a cruel awakening. One day it will be their reporting, their cause, under attack. But at least reporters now know to stay away from Heathrow transit lounges.

The UN special rapporteur on freedom of expression issued a stern caution about this, noting:

The protection of national security secrets must never be used as an excuse to intimidate the press into silence and backing off from its crucial work in the clarification of human rights violations. . . . The press plays a central role in the clarification of human rights abuses.

This is good, but useless. The forces that shape our world are increasingly decided outside any democratic body, whether in a G20 Summit or an arcane provision of a law that no one has read or debated. The UN's warning is a sneeze in a storm.

UK journalist Philip Bump also explains why this should cause us concern, and points out a few people who care, and a few who don't.

David Miranda, who was detained for eight hours and 55 minutes by British authorities over the weekend because they thought he was carrying NSA documents for The Guardian, is taking legal action against the government — a move that could crystallize the conflict between state security and journalism.

The British government's conflation of journalism with terrorism in the case of David Miranda is problematic largely because journalism, like terrorism, is no longer performed by discrete, centralized entities. Instead, journalists and those performing journalism around the world operate in small cells or individually. You post a video of police detaining a suspect to your Facebook wall, and you're committing an act of journalism — one that authority figures may not see as subject to First — or Fourth — Amendment protections.

In the battle with the security state, those who might commit acts of journalism have three choices: acquiesce, push back, or step away.

Miranda, who is Guardian reporter Glenn Greenwald's partner, is choosing option two. The BBC reports that Miranda is taking legal action of an unspecified nature, challenging his detention and seeking to prevent the government from reading the information on the devices it collected. What that information is may only be known by filmmaker Laura Poitras, the person with whom it originated in Berlin, but there's little doubt it includes encrypted files related to the Snowden leaks.

The British Home Office released a statement about the Miranda incident. It reads, in part:

If the police believe that an individual is in possession of highly sensitive stolen information that would help terrorism, then they should act and the law provides them with a framework to do that. Those who oppose this sort of action need to think about what they are condoning.

The most important word in that statement is "would." Not "could" help terrorism — a standard so loose that it might apply to millions of pieces of information and real-world objects. But "would." The British appear to be echoing the NSA's line that detailing how the government does its work is itself an aid to terrorists. (A claim perhaps undermined by the recent embassy closures.) It also appears to echo the argument made by the government in the Bradley Manning case: publishing information is aiding the enemy.

There are some to whom this argument is compelling. The British paper The Telegraph defends the authorities' action in detaining Miranda, as does the editor of Kernal magazine. (His article begins "PRISM blogger Glenn Greenwald’s Brazilian boyfriend, David Miranda…," providing a clear indicator of where his argument was headed.)

Rising to the defense of the American government is Jeffrey Toobin of the New Yorker. Toobin was criticized for his critique of the Snowden leaks earlier this month; Tuesday's essay is a continuation of that critique. "To be sure, Snowden has prompted an international discussion about surveillance," Toobin argues, "but it’s worthwhile to note that this debate is no academic exercise. It has real costs." Those costs are literal — the NSA having to build new surveillance systems — and figurative: "What if there is no pervasive illegality in the National Security Agency’s surveillance programs?" Toobin states that there is "no proof of any systemic, deliberate violations of law" revealed by Snowden, then noting of the Post revelations about privacy violations that "it’s far from clear, at this point, that the N.S.A.’s errors amounted to a major violation of law or an invasion of privacy." Incidental violations of privacy law, averaging seven a day, are acceptable to Toobin, as a cost-saving measure.

Those specific defenses aside, the intentions of the British authorities cannot be considered outside of the context of their behavior. Late Monday afternoon, Guardian editor Alan Rusbridger revealed the paper's encounters with British authorities over this information. In a weirdly archaic move, representatives of the government's intelligence arm forced the destruction of hard drives containing Snowden information, as though that limited their ability to travel. The authorities threatened Rusbridger, prompting the paper to decide to move its reporting on the topic out of the country.

And then there's the treatment of Miranda himself. For eight hours, he was denied the right to his own counsel. The end result was confiscation of his electronic media, something that could have been accomplished in less than an hour. But, Reuters reported on Monday, that wasn't all that the authorities hoped to accomplish.

One U.S. security official told Reuters that one of the main purposes of the British government's detention and questioning of Miranda was to send a message to recipients of Snowden's materials, including the Guardian, that the British government was serious about trying to shut down the leaks.

In other words, intimidation.

The Columbia Journalism Review offers a broader sense of the effect on journalism — behavior performed by far more than just journalists.

In light of Rusbridger’s disclosures, it’s even clearer that the detention of Miranda is part of an attack on American journalists authorized at the highest levels of the British government, and it’s an attack that is at the very least implicitly backed by the Obama administration. …

This is police-state stuff. We need to know the American government’s role in these events—and its stance on them—sooner rather than later.

The founder of law site Groklaw offered her response to the government's surveillance systems in a post this morning. In short: she's closing the site. That's stepping away from the fight, and a natural reaction to intimidation. But only one of the three responses — acquiescing, pushing back, or avoidance — offers the hope of reform.

And finally, for reference, The Guardian has an excellent page full of stories and links about what's at stake: The NSA files.