Protecting the Fourth Estate in the Post-Snowden Era

Humanity's technological headway has always outpaced its moral progress. No sooner do we stumble upon marvelous new innovations than we find a way to abuse them. Then again, it's all a matter of perspective.

Many viewed the Iron Curtain's destruction as portending a new halcyon age of liberalism and freedom. Instead, the events of 9/11/2001 persuaded us to surrender a portion of these principles in exchange for a higher degree of security. A number of plots against public safety have been foiled in Canada since then, and only the most cynical would deny that the enhanced state security apparatus has kept its end of the bargain.

We neglected to read the fine print, however. When Edward Snowden exposed the raw extent of the surveillance paradigm in 2013, it became apparent that too much may have been sacrificed. Such concerns were refreshed recently here in Canada, when in early November it was revealed that police in Québec had been spying on several journalists for a number of years in order to discover the identities of their sources. In the most recent of these cases, Montreal police obtained surveillance warrants allowing them to monitor the call and text logs for La Presse columist Patrick Lagacé's mobile phone. It also authorized them to track Lagacé's whereabouts by tapping his phone's GPS signal, though they deny this latter privilege was utilized.

The justification offered for these rather extraordinary measures complicates the matter, because it embodies the dilemma we face between balancing liberty with security. The Montreal police were conducting an internal investigation concerning corruption within their department. On the one hand, the police as an institution must strive to be a paragon of integrity, which means rooting out internal corruption mercilessly. If doing so means invading the privacy of an innocent bystander, the argument can be made that it is worth it. Indeed, the police employed this very argument, or at least insinuated it, when they insisted that the journalist affected was not the express target of the investigation.

Perhaps not the target, no. But any fool can see that the journalist was the bait on the hook, as it were, which is nearly just as bad. That is because there is a larger issue at play here, and a grander message being sent by implication, intentionally or not.

Investigative journalists, like Lagacé, are only as effective as the sources they can acquire, who often have good reasons to remain anonymous. If those sources were to suddenly clam up due to, say, a fear that surveillance might compromise their identities, investigative journalism would be paralyzed. Let us imagine, for a moment, a parallel universe in which the Montreal police officer under investigation had contacted Lagacé in order to spill the beans on some rotten cover-up within the department. The culprits are desperate to identify the whistleblower, so they tap the journalist's phone knowing it will lead them to their target. It's an unlikely scenario, to be sure, but it nonetheless demonstrates how severing the link between journalists and their sources could be used for nefarious purposes as well as legitimate ones.

Resorting to invasive surveillance tactics against journalists can only have a chilling effect on public knowledge, however scrupulous those at the levers of power may be. It is easy to conceive of a situation where a journalist's potential sources become too paranoid to play ball simply because the gravity of their information could put them at risk, even in the absence of evidence indicating that they are being watched. Such a world would evoke the concept of Michel Foucault's Panopticon: a circular prison with a central guard tower that makes inmates police themselves because they have no way of knowing when they are not being watched. After all, neither Lagacé nor any of the other journalists in question had reason to believe that they were being spied on until the police admitted as much; therein lies the utility of digital espionage.

Allowing the Fourth Estate to become neutered could also have the unintended consequence of driving it underground into the arms of the Fifth Estate. Professional journalists have public reputations to uphold, and live by editorial policies that add a degree of prudence to their work. The same cannot necessarily be said of an organization like WikiLeaks, for instance, which has a history of publishing sensitive information with abandon. Chelsea Manning rightly brought serious crimes to the public's attention, but was also reckless in the way that she dumped a large number of other military and diplomatic documents into the open. Is it wise to force whistleblowers to interact with the Fifth Estate's unrestrained entities, like WikiLeaks, or would we rather they choose professional avenues like The Guardian or The New York Times to get their message out responsibly, as Edward Snowden and Daniel Ellsberg did?

Our answer to that question should inform the level of indignation we express toward violations of a journalist's privacy. If the Canadian public acquiesces to these seemingly innocuous surveillance practices, we risk them becoming the new normal, which could insidiously jeopardize the public's ability – and therefore its right – to be informed. A potent Fourth Estate is an essential element of a healthy democracy.

It is for this reason that Canada could do with a journalist shield law that allows reporters to protect their sources, in much the same way that priests, doctors, and lawyers are granted the right to client-confidentiality in all but the most extreme cases. Forty-nine US states and several European countries have such a law; some of those countries have it enshrined in their constitution. As a step in this direction, soon after the Lagacé story broke Senator André Pratte announced his readiness to table legislation meant to better protect journalists from spying. That the Québecois journalists were unknowningly monitored for so long introduces the probability that the same has been done elsewhere in Canada as well; Pratte's comments acknowledged this likelihood, opining that “The temptation for police to uncover journalist sources does not just exist in Montreal, it exists all over. What’s happening shows the current laws are insufficient.”

One of those insufficiencies is the apparent ease with which police have obtained the requisite warrants for surveilling journalists – the judges issuing those warrants appear to be little more than rubberstamps. Another is the precedented possibility that judges are not fully aware of what they are sanctioning. In 2013 Justice Richard Mosley scolded CSIS for what he called a “breach of the duty of candour owed by the service and their legal advisors to the court” regarding the case known as Re (X). Once again, in early November 2016 Justice Simon Noël suggested that CSIS's failure to be forthright about its 'associated data' retention program verged on contempt of court.

As the tip of Canada's national security spear, CSIS needs some extraordinary powers to carry out its mandate effectively, as do police services if they are going to thwart criminals – especially ones inside their own department – and retain the public's trust. We must find a way to reconcile these requirements with the need to protect the integrity of liberal democracy's vital institutions, which include the Judiciary and the Fourth Estate.

Edward Snowden once described Canada's security apparatus as having “one of the weakest oversight frameworks of any Western intelligence agency in the world.” Implementing legislation that explicitly protects journalists would improve our country's performance on this front, sending a firm message that their occupation is essential to our society's well-being, and must be protected from even inadvertent intimidation that could erode its ability to function. The police evidently decided that spying on journalists was in the public's best interest, so the means justified the ends. But a robust Fourth Estate is a means to liberal democracy. That is the highest end of them all.