Whistleblowers and the Espionage Act

What follows is an excerpt from Micah Lee's 8-4-19 The Intercept article entitled "The Metadata Trap: The Trump Administrations Is Using the Full Power of the U.S. Surveillance State Against Whistleblowers":

Government whistleblowers are increasingly being charged under laws such as the Espionage Act, but they aren’t spies.

They’re ordinary Americans and, like most of us, they carry smartphones that automatically get backed up to the cloud. When they want to talk to someone, they send them a text or call them on the phone. They use Gmail and share memes and talk politics on Facebook. Sometimes they even log in to these accounts from their work computers.

Then, during the course of their work, they see something disturbing. Maybe it’s that the government often has no idea if the people it kills in drone strikes are civilians. Or that the NSA witnessed a cyberattack against local election officials in 2016 that U.S. intelligence believes was orchestrated by Russia, even though the president is always on TV saying the opposite. Or that the FBI uses hidden loopholes to bypass its own rules against infiltrating political and religious groups. Or that Donald Trump’s associates are implicated in sketchy financial transactions.

So they search government databases for more information and maybe print some of the documents they find. They search for related information using Google. Maybe they even send a text message to a friend about how insane this is while they consider possible next steps. Should they contact a journalist? They look up the tips pages of news organizations they like and start researching how to use Tor Browser. All of this happens before they’ve reached out to a journalist for the first time.

Most people aren’t very aware of it, but we’re all under surveillance. Telecom companies and tech giants have access to nearly all of our private data, from our exact physical locations at any given time to the content of our text messages and emails. Even when our private data doesn’t get sent directly to tech companies, our devices are still recording it locally. Do you know exactly what you were doing on your computer two months ago today at 3:05 p.m.? Your web browser probably does.

Yet while we all live under extensive surveillance, for government employees and contractors — especially those with a security clearance — privacy is virtually nonexistent. Everything they do on their work computers is monitored. Every time they search a database, their search term and the exact moment they searched for it is logged and associated with them personally. The same is true when they access a secret document, or when they print anything, or when they plug a USB stick into their work computer. There might be logs of exactly when an employee takes screenshots or copies and pastes something. Even when they try to outsmart their work computer by taking photos directly of their screen, video cameras in their workplace might be recording their every move.

Government workers with security clearance promise “never [to] divulge classified information to anyone” who is not authorized to receive it. But for many whistleblowers, the decision to go public results from troubling insights into government activity, coupled with the belief that as long as that activity remains secret, the system will not change. While there are some protections for whistleblowers who raise their concerns internally or complain to Congress, there is also a long history of those same people being punished for speaking out.

The growing use of the Espionage Act, a 1917 law that criminalizes the release of “national defense” information by anyone “with intent or reason to believe that it is to be used to the injury of the United States or to the advantage of a foreign nation,” shows how the system is rigged against whistleblowers. Government insiders charged under the law are not allowed to defend themselves by arguing that their decision to share what they know was prompted by an impulse to help Americans confront and end government abuses. “The act is blind to the possibility that the public’s interest in learning of government incompetence, corruption, or criminality might outweigh the government’s interest in protecting a given secret,” Jameel Jaffer, head of the Knight First Amendment Institute, wrote recently. “It is blind to the difference between whistle-blowers and spies.”

To read Lee's entire article, click HERE.