Boring and harmless people, as the vast majority of us are, have been given many indications that we’re not living under mass surveillance purely for our own protection. The National Security Agency and its allies have tapped the cell phones of friendly European heads of state. They’ve spied not just on terrorist cells, but on competitive businesses and governments. Many of their agents reportedly enjoy gawking at photographs that couples share with each other over email.
These invasions are so politically and psychically aggressive that without any further evidence of harm, we can justifiably condemn surveillance bodies as leviathans that are more perniciously observant of the publics they claim to serve than benignly watchful over them. But few indications of government overreach are as ominous as the fact that many lawyers and journalists, two professions that are essential to liberal democracies, have been forced to radically alter their relationships with the state.
Journalists and lawyers, who, among other things, help hold powerful actors accountable to the public in either the courtroom or the newsroom, must protect the confidentiality of their anonymous sources and their clients. Mass surveillance makes this vital obligation nearly impossible to fulfill. According to a new report from Human Rights Watch called With Liberty to Monitor All, in an age where governments are systematically pulling the curtains on all electronic communications, lawyers and journalists are trying to yank them back, and in doing so are forced to act like enemies of the state: journalists say they feel “like spies”; lawyers, like “drug dealers.”
Lawyers are legally bound, and journalists ethically bound, to protect the confidentiality of their respective clients and sources for the simple fact that if they don’t, they can’t do their jobs properly. Most people who have access to sensitive (but not necessarily classified) information that is in the public’s interest to know, won’t be inclined to share that information with journalists if they think they could lose their jobs or go to jail. People who should speak with their lawyers won’t do so if they think that the government is listening to what they say, and lawyers may not thoroughly investigate an issue if the government can monitor who they speak to.
At a time of increasingly panoramic visibility, confidentiality may be an empty promise. But promise it journalists and lawyers must. To keep it, they employ strategies that are as dramatically subversive as they are ultimately futile. They fly across the world to meet sources and clients in person. They use encrypted email. They don’t use email at all. They use burner phones. They don’t use phones at all. They produce documents on air-gapped computers. They don’t remove any documents from heavily secured offices.
But the electronic arsenal of surveillance armies is so heavy that, even if lawyers resort to sensational and clandestine protective measures, some bar associations now ask them to warn clients that they can no longer expect the confidentiality to which they’re entitled. Journalistic sources who work in government probably don’t need to be reminded.
Of course, we’re not accustomed to feeling sympathy for journalists and lawyers. While it’s unclear that there was ever a golden age of journalism, we can be fairly certain that this isn’t it. And if journalists are considered repellant, lawyers are reviled. They materialize during the most difficult circumstances — the deaths, the divorces, the deaths caused by divorces — and then proceed to make those circumstances even more difficult by taking a sizeable portion of your money.
But whether you hate them or hate them a lot, lawyers and journalists perform a role in liberal democracies that is as fundamentally important as it is occasionally ugly. Maybe that’s why they’re so frequently irritating. We want them to do their jobs better (more ethically, more thoroughly, with greater sensitivity and intelligence) because we recognize how crucial those jobs are to our own interests, and to the interests of our society. They are indispensable agents of the democratic system and the legal system, both of which keep people accountable to the public so that citizens aren’t subject to the arbitrary exercise of brute power.
Of course, apologists for mass surveillance argue that surveillance has long been a necessary fact of life for lawyers, journalists and everyone else, and that its evolution is in synch with evolving security threats. Surveillance, according to this logic, has only increased in scale, not radically mutated into something more sinister.
By burrowing deep into global communications, governments have triggered a seismic shift in the political landscape that they now oversee with dark omniscience: it’s not just that more communication is monitored, it’s that so much more communication is monitored that it’s become reasonable — not paranoid — to assume that elements of your private communication are subject to government surveillance. The presumption of being spied on has rudely replaced the presumption of not being spied on. And as that presumption has changed, the basic relationship of lawyers and journalists to the state has had to change too.
Lawyers and journalists can no longer reliably work within reasonable parameters of the state to do their jobs properly, jobs that are essential to the survival of a liberal democratic state. To meet not only their professional obligations, but their obligations to us all, they have no choice but to intentionally subvert the state by evading its long reach: sometimes dramatically, always deliberately and, perhaps, entirely in vain.
“I’ll be damned if I have to start acting like a drug dealer in order to protect my client’s confidentiality,” said Tom Durkin, a lawyer who spoke to Human Rights Watch.
Governments are brazenly burgling the entire population of the cyber world, and yet the journalists and lawyers who try to guard the public’s privacy feel like they’re the criminals. When professionals who serve the public interest are forced to pantomime spies and crooks just so they can fulfill the basic duties required of them by a liberal democracy, the liberal democracy can no longer be said to be much of a liberal democracy at all.