U.S. Court Validates Spying Fears of Journalists, Activists

By Colin Freeze

March 22, 2011 "Globe and Mail" - -Fearing
that a powerful U.S. spy agency is listening in, a group of activists and journalists – including Canadian Naomi Klein – has persuaded a New York appeals court that it is reasonable to assume their phone and e-mail conversations are being monitored.

The ruling finds that new U.S. surveillance laws are so broad as to compel certain professionals to protect their sensitive conversations. Otherwise, their dialogues with sources – such as radicals, dissidents and alleged terrorists overseas – might well be overheard.

“The plaintiffs have good reason to believe that their communications, in particular, will fall within the scope of the broad surveillance that they can assume the government will conduct,” reads the ruling from the Second Circuit appeals court in New York.

The ruling highlighting growing U.S. “signals-intelligence” – or SigInt – practices stops short of confirming any such spying. But it is a rare judicial nod to fears that laws governing “foreign” surveillance practices have been watered down to the point of permitting disturbing dragnets.

The plaintiffs – which include Human Rights Watch, Amnesty International and several journalists including Ms. Klein – now have the legal standing to challenge the post-9/11 surveillance laws. A lower court had found their concerns “too abstract” and tossed out the suit.

The American Civil Liberties Union is leading the suit.

The U.S. National Security Agency is the most powerful SigInt body in the world. Its interception technologies are growing increasingly sophisticated even as U.S. spymasters have exploited legal loopholes to permit more spying.

In general, SigInt agencies exist to monitor the communications of hostile foreign entities – such as terrorist operatives or rival spy services. However, in 2008, Congress removed some checks and balances – including a “probable cause” clause that stipulated government agents should zero in only on hostile foreigners.

Now it is no longer just terrorists and spies who worry about being monitored – lawyers, journalists and activists fear they are fair game too. It’s even possible their conversations may turn up in mass intercepts from countries the United States regards as problematic.

“Any of these phone conversations can be scooped up and they sort it out later,” said Sylvia Royce, a former U.S. Department of Justice lawyer who is a plaintiff in the suit.

In an interview, she said she represents a Mauritanian Montrealer being held as an al-Qaeda suspect at Guantanamo Bay. Ms. Royce, a U.S. citizen, fears privileged telephone conversations related to her client, Mohammedou Ould Salahi, will be picked up by surveillance dragnets.

Ms. Klein has different concerns. “For me, the real issue is not being under surveillance. The issue is putting my sources at risk by talking to me,” the Canadian journalist said Tuesday in a phone interview from Britain.

The author of No Logo and The Shock Doctrine said she was approached by the ACLU to join the suit three years ago.

She wrote an affidavit describing how she often speaks to Zapatista rebels in Mexico and leftist indigenous groups in South America. Because many of her sources legitimately fear repression and surveillance, she said she now travels to get information she might have previously received by telephone or e-mail.

“The issue is that we think that the activities that we do could fall under these broad definitions,” Ms. Klein explained. Asked whether she believed her own communications are monitored, she said, “I have no idea whether they are or they aren’t.”

The Second Circuit ruling explains that while U.S. citizenry as a whole has little to fear, the plaintiffs are hardly paranoid if they take precautions to safeguard sources. “Fears of surveillance are by no means based on ‘mere conjecture,’ delusional fantasy or unfounded speculation,” the ruling says.

Read the ACLU backgrounder - The American Civil Liberties Union brought the suit alleging dragnet surveillance in unconstitutional.  - Download this file (.pdf)