Our government’s quiet war on press freedom

It happened under Trump — and under Obama: The U.S. is using bad law to crack down on investigative journalism

By Kathleen McClellan – Jesselyn Radack: Salon.com

Over the past 14 years, a war on the free press has been quietly escalating in the U.S. This brewing conflict is fueled by increased and unchecked government surveillance, a post-truth intolerance of any criticism of media coverage, and prosecutions of media sources, journalists and publishers which have been endorsed by politicians on both sides of the political spectrum. Beginning a decade ago with the prosecution of whistleblowers, the U.S. campaign to tamp down leaks has spread to the criminalization of standard investigative journalism. While the U.S. still presents itself as the global standard-bearer for free speech and freedom of the press, recent fissures expose a looming calamity.

Due to aggressive national security investigations and two draconian laws, journalists and media sources are at severe risk of increased criminal investigation and prosecution. We have seen these risks realized in the cases of Timothy Burke, Julian Assange and Catherine Herridge, three individuals who might not seem to belong in the same category at first — and who may not all look, to many readers, like “real journalists.” Whether or not one personally approves of what they do, all three are being punished for the work of journalism, and the laws and systems being used to target them do not discriminate based on whether the mainstream media considers them legitimate. The precedent set by these cases will apply in future to anyone engaging in such entirely normative journalistic activities as cultivating sources while protecting their anonymity, and seeking to publish information in the public interest that governments or other powerful forces seek to control.

Investigative journalist and media consultant Timothy Burke was indicted last month on accusations that he acted illegally in obtaining information that was available online by using dummy login credentials that had been openly published, and which were shown to him by an anonymous source. According to the Tampa Bay Times, Burke gained access to a number of “protected commercial broadcast video streams,” apparently including behind-the-scenes video content from Fox News of an infamous October 2022 Tucker Carlson interview with the rapper Ye (formerly Kanye West). Burke’s lawyers maintain that no illegal hacking occurred, and the investigation targeting Burke has drawn condemnation from dozens of press freedom groups, including ours, following a raid on Burke’s house during which his computer equipment and other electronic devices were seized. The charges against Burke center on alleged violations of the Computer Fraud and Abuse Act, a law we view as over-broad and fatally vague.

The CFAA was first passed in the 1980s amid a hacking hysteria driven as much by pop culture as by the nascent computer age. Ronald Reagan was reportedly worried about hacking after seeing the movie “War Games,” which depicted a teenager hacking into the U.S. air defense system and nearly sparking nuclear war. Congress amended the law numerous times in the years following, including in the 2001 Patriot Act, which made it easier for prosecutors to allege felonies and doubled the penalty under the law. Even with those amendments, the CFAA has failed to keep pace with technology and remains so extraordinarily broad that it has become the government’s bludgeon of choice to punish hacktivists such as Aaron Schwartz, who died by suicide after years of government investigation, and whistleblowers such as Chelsea Manning.

Julian Assange, the legendary or notorious founder of WikiLeaks, now faces the last phase of an extradition battle in the U.K., where he has been in custody for nearly five years. If he is returned to the U.S., he faces potential charges both under the CFAA and the equally problematic Espionage Act.

The Espionage Act was originally passed in 1917, amid the patriotic fervor and social chaos of America’s entry into World War I. Its supposed purpose was to prosecute German spies, but the law wad immediately used instead to tamp down dissent and has been criticized by many legal experts as poorly drafted, overly broad and vague. The Espionage Act cast a chill over journalists, publishers and whistleblowers throughout the Cold War years, most spectacularly in the case of Pentagon Papers whistleblower Daniel Ellsberg. The case against Ellsberg collapsed, largely due to extreme (and illegal) misconduct by the Nixon administration. But after lying dormant for 40 years of dormancy, the law was deployed with renewed vigor: Barack Obama’s administration prosecuted twice as many Espionage Act cases as all previous administrations combined. Those included the prosecutions of NSA whistleblowers Thomas Drake and Edward Snowden, U.S. Army whistleblower Chelsea Manning and CIA whistleblowers Jeffrey Sterling and John Kiriakou. Many Espionage Act cases of that period also ensnared reporters, resulting in their communications being subpoenaed — as in Sterling’s case —or reporters actually being labeled co-conspirators, as in the case of former State Department employee Stephen Kim.

The Trump administration further normalized the use of Espionage Act prosecutions to suppress media disclosures, bringing cases against FBI whistleblower Terry Albury and NSA whistleblower Reality Winner, and resurrecting the dormant case against drone whistleblower Daniel Hale. Trump officials also took the law a step further by indicting Assange under the Espionage Act for conduct that national security reporters engage in on a regular basis, such as publishing classified information, protecting sources’ identities and using encryption. The Assange indictment has since been condemned as a threat to press freedom by NGOsmedia outlets, academic experts and members of Congress.

Now we come to Catherine Herridge. Herridge is an acclaimed investigative journalist who was held in contempt of court for refusing to reveal her source in a Privacy Act lawsuit brought by the Chinese-American scientist Yanping Chen, who for years was the target of an FBI counterintelligence investigation that was abandoned in 2016 with no charges filed. Herridge, who then worked for Fox News, reported several stories on the investigation, including information that Chen claims was provided to Herridge by the federal government in violation of the Privacy Act. Herridge had moved on to CBS News when she was called to reveal her sources in the Chen lawsuit. Although CBS initially supported Herridge’s position, she was laid off by the network last month. Initial reports suggested that CBS had seized or retained Herridge’s files, computer and records, including information on her confidential sources, but the network has denied that and Herridge’s possessions have since reportedly been returned.

The use of the CFAA and the Espionage Act against journalists, coupled with contempt orders aimed at compelling reporters to reveal confidential sources, has created a perfect storm of anti-free-press activity in the U.S. Because the current climate has emerged from a slow burn of byzantine laws used to selectively prosecute the most controversial media sources and whistleblowers, the American public has become too inured to perceive how much the fundamental rights of press freedom have been chipped away. There are small pockets of protest with every individual case, but most Americans, regardless of their party affiliation or ideological views, do not understand the dimensions of this assault on the freedom of the press.


By Kathleen McClellan

Kathleen McClellan is deputy director for the Whistleblower and Source Protection Program (WHISPeR) at ExposeFacts. She focuses on issues of mass surveillance, excessive secrecy, torture and drone warfare, and has served as lead counsel in test cases before the U.S. Merit Systems Protection Board and federal circuit courts.

By Jesselyn Radack

Jesselyn Radack represents Edward Snowden and a dozen other individuals investigated or charged under the Espionage Act. She heads the Whistleblower & Source Protection Program (WHISPeR) at ExposeFacts. As national security & human rights director of WHISPeR, her work focuses on the issues of secrecy, surveillance, torture and drones.