August 28, 2013 Leave a comment
Have we taken freedom of information for granted? The logical corollary to freedom of conscience and freedom of thought, freedom of information is enshrined at constitutional level as a basic civil liberty, ensuring freedom of opinion, independent investigation, the right to dissent, expose facts objectively and sometimes subjectively, creating an informed public owing to journalism the possibility to form a complex and critical opinion of the government they, in democratic societies, choose to represent them. Freedom of information is protected as freedom of speech, freedom of expression, to convey and relate an idea, a belief, a value, a principle and the results of research without fear of retaliation from a government seeking to annihilate opposition. Freedom of information is the freedom of the press; it is the freedom to compare and contrast and conclude what’s best; it is the freedom to figure out what is taking place where we do not have access; it is freedom to understand a world we can’t always see or hear. Freedom of information is not only a link between the public and those who represent it; it is also a link between ourselves, and a link between us and those far away from us and whose fate is somehow, to some extent, in our hands.
More than ever freedom of information is now being restricted, facing secrecy and classification of documentation, arrest and imprisonment of journalists, probe into newspaper access, seizure of personal documentation while in transit, all in the name of the overwhelming and overpowering concept of national security. The overreach of counter terrorism legislation has led to an impossible and seemingly unwinnable war against freedom of information, at a time when whistleblowers do not benefit from the protection of the law despite their clear intent and objective to act as they do in the name of public interest and defense of the collective. When constitutional rights have failed at domestic level, and security no longer ensures the safety of a citizen to access information about their own rights, can we restore freedom of information in its rightful place? Is freedom of information a cornerstone of human rights?
A “touchstone” of democracy
Freedom of information is not a choice by any democratic society to uphold; it is a fundamental right enshrined in international law on the very first United Nations General Assembly (UNGA) in 1946. In its resolution 59 (I), the UN claims “freedom of information is a fundamental human right… The touchstone of all the freedoms to which the United Nations is consecrated.” In a later report established in 1995 for the UN Commission on Human Rights (UNCHR), Abid Hussain explains:
(…) freedom will be bereft of all its effectiveness if the people have no access to information. Access to information is basic to the democratic way of life. The tendency to withhold information from the people at large is therefore to be strongly checked.
There lies the suspicion that any violation of freedom of information is an indication, a red flag of further human rights violations to come. This cornerstone of what is merely transparency between a government and the population it represents in order to prevent abuses and declare collective responsibility has been enshrined in the International Covenant on Civil and Political Rights (ICCPR), a 1966 text that aimed to derive civil rights from basic fundamental human rights legislation and ease their transition into domestic law. A Special Rapporteur on Freedom of Opinion declared in 1999 that the ICCPR should suffer no restrictions:
(… ) Emphasizes that everyone has the right to seek, receive and impact information (…) this imposes a positive obligation on Stares to ensure access to information, particularly with regard to information held by Government in all types of storage and retrieval systems (…) as referred to in Article 19 (3) of the ICCPR.
This “right to know” is unequivocal. However, the language of the Special Rapporteur ought to be noted: we understand freedom of information as freedom to receive it – newspaper publication and distribution, television and radio broadcast, online publication – but the Special Rapporteur has also added another component: the right to seek information. The right to seek information is an important derivative: it means that if one information is not readily available through the regular aforementioned channels, any citizen is within their given right to go and look for it. This involves direct access to information, not simply accessible information. Failure to disclose is not failure to inform; a non-disclosure should be counter-acted by a request to information, under the concept of obligation by a state to respect freedom of information.
Restrictions on freedom of information, however, are tough waters to tread. In the landmark case Miranda v Arizona, the reasoning behind mandatory information of one’s rights was that, without key access to knowing their own rights, “a defendant cannot take a appropriate role in the exercise of those rights”. If freedom of information is a fundamental human right, who are we trying to stop exercising those rights? Like with most modern breaches of human rights, the concept of security has appeared with a notion of public defense and public safety that could only be achieved through covert action. Information about police activities, troops placement, military bases, current investigations and judicial proceedings are restricted from access in order not to obstruct the course of justice. Is it however justice that is being protected when restricting information, or are we keeping it under lock? When it comes to counter terrorism methods, violations are so common and the rhetoric always similar from nation to nation it is becoming sound and acceptable policy to restrict basic civil liberties to be “protected” from an enemy increasingly knowledgeable and ubiquitous. However, this belief is peppered with cases of abuse of those restrictions.
The arrest and detention of David Miranda: information as terrorism
Glenn Greenwald, the journalist who revealed to London-based newspaper The Guardian the extent of Edward Snowden’s leaks regarding unlawful surveillance of American and European citizens by the National Security Agency (NSA), has suffered much intimidation from the American government since he first started to cover the story. Recently, his own partner, David Miranda, was transiting through Heathrow Airport in London and was arrested then detained for 9 hours under the Anti Terrorism, Crime and Security Act (ATCSA). Amnesty International called the operation “unwarranted and unlawful”. It was.
Voted in 2001, the ATCSA allowed for indefinite detention without charge for individuals arrested on suspicion of terrorism activities. They were considered too dangerous to be released into the public. Under non-terrorism charges, British law requires a maximum of 24 hours of detention, under proof of reasonable suspicion. Suspicion of terrorism does not cover solely the fact of committing an offense; it also refers to detaining information related to that alleged offense. Any failure to provide said information to the authorities is considered an act of terrorism. If Edward Snowden is currently under asylum in Russia and has seen his passport revoked, Glenn Greenwald – and by extension David Miranda – have never been suspected of terrorist activities. However, section 1 of the ATCSA refers to “use of threat of action … (b) designed to influence the government or an international governmental organisation, or to intimidate the public or a section of the public; (c) made for the purpose of advancing a political, religious or ideological cause. ”
The European Court of Human Rights has emitted various reserves as to the vote of the ATCSA. Dissenters of the act itself have claimed that its definition of what constitutes terrorism was too broad. Powers granted to law enforcement under this act are also in direct violation of fundamental rights. In the case of David Miranda, the seizure of his property – in this case, laptop, hard drives, USB keys – were covered by para. 3, sect. 5 granting power of seizure of objects when police “has reasonable grounds to believe (they) will be of substantial value”. This reinforces the belief that in Miranda’s case, information is terrorism, since all the powers used against him were granted by the ATCSA (as opposed to, say, the Computer Misuse Act of 2009 that could have covered any WikiLeaks-related charges). S. 1 of an updated ATCSA from 2006 creates an offense out of publishing “(…) a statement that is understood as direct, indirect or inducement to the commission, predation or instigation to acts of terrorism.” A year later, complaints that the section was way too vague and was in breach of Article 10 of the European Convention on Human Rights (ECHR) regarding freedom of information were made. They were met with the concept of national security, a justification for human rights restriction. Problem is, in the United Kingdom as in the former colony of the United States, what constitutes an issue of national security isn’t clear.
Definition of what constitutes secrecy in Britain falls under five criteria: defense of the realm, prosecution of war, disposition of armed forces, weapons of mass destruction, and last but not least, activities of security and intelligence services, that already had The Guardian in hot judicial waters (Attorney-General v The Guardian Newspapers Ltd, 1988). Recently, those counter-arguments to freedom of information claiming that the free-flow of information, through whistleblowing or leaking, is detrimental to national security have been the cornerstone of domestic policy on surveillance. Because european and by extension international law are laws created by states and implemented by states, restrictions are also implemented by same states for their safety: restriction on Article 10 is in its own section 2, where freedom of information is restricted in matters of national security regarding “territorial integrity or public safety”. (see the Spycatcher case). As established before, fundamental rights guaranteed by statutes similar to Article 10 should not be restricted and any restrictions are to be “checked”.
In Sunday Times v United Kingdom (1979), this national security “necessity” was defined by a “pressing social need” and subject to overall european supervision. In various injunctions made in 1986 and 1987 against the Guardian and the Observer, there was question of whether the protection of national security was “sufficient” to justify the imposed restriction. National security does not, inherently and intrisically, become a justification against civil liberties. It is not a direct counter argument. The two can perfectly coexist without asking for jurisprudence to create a norm. Courts’ opinions shifted over time, while outrage over the Prevention of Terrorism Acts (PTAs) of the 1970s and their dire consequences on “irish terrorism” morphed into the response to a more global, less focused ATCSA. Two criteria remain: sufficient prohibition and proportionate reaction in the injunctions made against freedom of information and freedom of the press. It is abundantly clear at this point that neither of these criteria and none of the aforementioned barriers of protection have been applied in the detention of David Miranda.
Whether free-flow of information can actually present an issue in the case of government and – as in seen recently in the Chelsea Manning case – military whistleblowers is a question of “damaging disclosure”: is the information being published and distributed presenting a real risk to deployed troops, law enforcement operations or diplomatic relations? There is no standard. The government in place at the time places the bar on what it considers to be damaging, what it sees as being a disclosure and what it believes should be classified. In two landmark decisions in Britain (Guardian v United Kingdom, 1992 and R v Shayler, 2002) the extent of the damage is challenged by the concept of “public interest”. Civil liberties – as in the right to seek and receive information as a citizen – is perceived as being equal, if not superior, to the notion of classification due to security. If the population can benefit from an information being disclosed, and can take action for or against a policy as a direct result of the presented information, the notion of damage due to disclosure no longer stands.
Death or better days: on the legal protection of whistleblowers, pt. 2
This is the importance of whistleblowing: this is where the core of the debate is. Who benefits the most from leaks being published online? Who is using this information, often presented in a format non easily accessible to non-knowledgeable members of the public? More importantly, what will be the population’s reaction to this information? If there is no such thing as a citizenry presented as a smooth, fluid, homogeneous entity, a reaction can be strong, vocal, and sometimes violent. If a government is attempting to protect itself from popular opposition, ranging from ousting at the next election to overthrowing the regime, it will of course consider the disclosure as damaging. It is in the nature of power to protect itself from what could harm it. Aristotle said it was in human nature to seek knowledge. In the question of freedom of information, it is therefore in the nature of a healthy, democratic and hopefully open society to constantly interact in a state of friction between state interests and civil liberties. If what we hope to achieve one day is complete superiority and unchallenged state of fundamental rights, it will have to be in a representative executive body that never classifies information, never operates under secrecy, and never takes a quizzical look at its domestic newspapers. Has it ever existed?
If friction is mandatory, if it must exists to keep power in place for representative purposes – but keep power constantly questioned and challenged, then friction will be maintained, arbitrated by judicial powers, provided they are not asked to uphold laws themselves not in accordance with the supraconstitutional or supranational ideals they have implemented. Britain will be answering to the European Court of Human Rights one more time in the case of David Miranda; the United States have already witnessed a titanic combat of legal wits when David Coombs, attorney to Chelsea Manning, attempted to explain to Judge Denise Lind the importance and responsibility incumbent to any citizen to hold crimes accountable. The contempt and disdain portrayed by Lind during her interaction with the defense counsel have not done the concept of judicial impartiality any justice. When Coombs tried his hardest to create a space for friction and even provoke it by extending the domain of the conversation on not just the means employed to leak information, but the very reasoning behind Chelsea Manning’s actions, a hand was raised as if to silence the broader implications of disclosure. If freedom of information is a human right, it has both a negative and a positive corollary. On the positive, it can be claimed, and obtained, by any citizen wishing to access information. On the negative, it forces an obligation upon the state to not only let information circulate, but also to provide access, and never restrict it. It is an active force, that creates obligations that are hardly ever met, as civil liberties are more and more restricted, only challenged when met with forcible judicial opposition by concerned parties. The only way we can make freedom of information a pro-active right again and impose the negative upon the state is to stay in a constant situation of alertness, and remain aware that restrictions are being implemented to intimidate anyone seeking information. It may be difficult to discern restrictions placed upon the daily circulation of information, as so many mediums are now competing to grab our attention, on relatively relevant issues.
It is important to keep in mind that above all, freedom of information is maintained and kept by journalists and writers, researchers, not simple pawns on the chessboard of civil liberties, but active agents who are protected at the highest level – by the Geneva Convention. Any restriction on the access to information by a journalist, any intimidation formed against them – or their close ones – in order to unlawfully seize the information they possess, halt the publication of an opinion or a fact, destroy collected data, block a server, or worse, physically restrain them by putting them in a prison cell is not just an attack on a profession, it’s an attack on a civil liberty, on a fundamental cornerstone of democracy, and a human right.