The level of deception in the reporting on Edward Snowden’s stolen National Security Agency documents has reached an all time high. Or shall we say “low?” The latest item, an article by James Risen and Laura Poitras, is so obvious in its prevarication that it was shocking to see it on the front page of The New York Times.
The article, titled “Spying by N.S.A. Ally Entangled U.S. Law Firm,” is transparently intended to mislead people into thinking the NSA lawlessly spied on American lawyers. In fact, when I first read the lede I thought that was exactly what Risen and Poitras were alleging. The lede:
The list of those caught up in the global surveillance net cast by the National Security Agency and its overseas partners, from social media users to foreign heads of state, now includes another entry: American lawyers.
The lede — the very first sentence in the article — explicitly says that that “American lawyers” have been caught up in the “surveillance net” cast by overseas spy agencies and NSA. The operative word being “and.” NSA and its “overseas partners” are spying on a U.S. law firm. If it’s not deliberately intended to mislead, then it’s very poorly written.
The reporters cleverly didn’t mention which agency is specifically doing the spying until the middle of the third paragraph where we discover that it wasn’t NSA who’s spying on the law firm at all, it was the Australian Signals Directorate (ASD), and the law firm, possibly an outfit called Mayer Brown, represented the government of Indonesia in trade talks with the U.S.
Since the ASD was the agency doing all the spying in this instance, you’d think we’d see the ASD mentioned not just in the lede but throughout the article. Instead, it appears just once in the roughly 2,000 word piece. How many times did Risen and Poitras mention NSA? 32 times. To repeat, the spy agency in question was mentioned by name only once, while the NSA was mentioned 32 times.
Why is this significant? Farhad Manjoo wrote a fascinating and troubling post for Slate last year that showed how online readers hardly ever read through an entire article. Most readers, in fact, only read half, while many readers don’t even bother to scroll (on my computer, I had to scroll down to read the sole mention of the ASD). Anyone skimming the article would naturally see “NSA” all over the place. It appears three times before the ASD or Australia is ever mentioned.
The only involvement by NSA in the entire operation came when the ASD informed NSA’s Canberra liaison about the data collected about the law firm. In response, NSA’s general counsel office “provided clear guidance” for the ASD. Benjamin Wittes and Jane Chong writing for the Lawfare blog theorized that the guidance likely had to do with minimizing the data collected from the law firm in compliance with U.S. law. Indeed, Risen and Poitras, deep within the article, noted that NSA “is prohibited” from spying on law firms without a warrant and that:
[T]he N.S.A. can intercept the communications of Americans if they are in contact with a foreign intelligence target abroad, such as Indonesian officials. The N.S.A. is then required to follow so-called minimization rules to protect their privacy, such as deleting the identity of Americans or information that is not deemed necessary to understand or assess the foreign intelligence, before sharing it with other agencies.
First of all, the authors confirmed here that it’s perfectly legal for this form of surveillance to occur, buttressing the notion that no wrongdoing was uncovered by Snowden. But again, while this highlights the minimization rules preventing the surveillance of U.S. persons, it also attempts to imply that it was NSA doing the spying here, even though it wasn’t: “the N.S.A. can intercept the communications of Americans if they are in contact with a foreign intelligence target abroad, such as Indonesian officials.” Why drop Indonesia in there other than to link NSA to spying on Indonesia in this context?
If that’s not the case, and NSA has tasked ASD with acquiring intelligence data about the law firm, then this could be problematic for NSA. But there’s no indication of this whatsoever in the article. Risen and Poitras note, however, that NSA “declined to answer questions…whether information involving the American law firm was shared with United States trade officials or negotiators.” This indicates that the document doesn’t say one way or another whether the law firm information was handed over.
On top of everything else, there’s no evidence that the law firm or any American citizens were deliberately targeted by either the ASD or NSA. This sounds exactly like inadvertent collection which was minimized in accordance with U.S. regulations.
The other elephant in the room is yet another story about Australia’s surveillance of Indonesia in the midst of heightening tensions between the two nations. As we’ve previously discussed, an earlier Snowden article helped to precipitate a military escalation in the seas separating the two nations after Indonesia withdrew its assistance in curbing a growing “people-smuggling” problem. And here we are again.
It’s continuously astonishing how nearly every reporter tasked with writing about the Snowden documents has slyly misled readers about the various files. Why isn’t the article clear in the lede about who’s doing the spying? Why is the actual spy agency only mentioned once, while NSA is mentioned dozens of times, twice in the context of spying on Indonesia? Why is exculpatory information buried deep within the lengthy article?
If these and countless other examples from the Snowden reporting aren’t intentional efforts to mislead, but, rather, accidental errors and poor reportorial judgment, then we’ve been witnessing some of the worst writing in the history of the modern press. If this is about misleading the public and inciting outrage, some serious accountability is in order.