Janine Jackson interviewed Electronic Frontier Foundation’s Rainey Reitman about the persecution of Glenn Greenwald for the January 31, 2020, episode of CounterSpin. This is a lightly edited transcript.
Janine Jackson: The pathway to Brazil’s presidency was cleared for neofascist Jair Bolsonaro by the imprisonment of former president and popular candidate Lula da Silva, on charges of “corruption” that many saw from the start as spurious and politically motivated. It is then a very big deal that information given to journalist Glenn Greenwald revealed collusion between the prosecutors and the judge in the case. Since Greenwald’s revelations, Lula has been released from prison, and Greenwald has been harassed and threatened, including by Bolsonaro himself. But his right to report has been upheld.
Now, though, public prosecutors have filed a criminal complaint, charging Greenwald with something called “cybercrime.” Here to help us see what this case might mean for journalists who challenge the powerful—and for us, the public that rely on them—is Rainey Reitman, chief program officer for Electronic Frontier Foundation and co-founder of the Freedom of the Press Foundation. She joins us by phone from San Francisco. Welcome to CounterSpin, Rainey Reitman.
Rainey Reitman: Thanks for having me, Janine.
JJ: I know we’re still learning, but free press advocates like yourself have seen enough to sound alarms about Glenn Greenwald’s case, in itself and for its implications for all journalists. What is meant by “cybercrime” here? Is it just a different dressing for trying to prosecute reporting?
RR: That’s a really good question. We’ve seen many different governments around the world push back against journalists who expose corruption in their areas. And so it’s not unusual to see prosecutions or to see harassment or public attacks on investigative journalists, especially ones that are very effective at exposing government corruption, the way Greenwald certainly has been.
What’s really interesting about this case is that they’re using this tool of “cybercrime laws,” which are laws that are meant to criminalize malicious hacking. So you could think of someone who breaks into a system to steal data for malicious intent in order to commit crimes, or for any number of other reasons. And these laws are designed to go after malicious hackers, and we’ve seen them be enacted around the world, and they often carry pretty stiff penalties. And so it’s really worrisome that this is an instance where we’re seeing an investigative journalist basically being charged as if he were a malicious hacker.
JJ: Well, they’re saying that Greenwald was engaged in a criminal conspiracy to hack telephones, that he didn’t just accept material from his source. Now, Greenwald, as listeners will know, a founder of the Intercept and the Intercept Brasil, is a lawyer, and he’s been around the block. And he’s been very clear that his source that he relied on for this reporting had all the materials when he first came to him. And, in fact, Brazilian law protects that reporter/source relationship, as the supreme court in the country even said.
So it sounds as though—he certainly denies the idea that he was encouraging his source to hack into phones, which sounds like that would have to be proven to meet the level of cybercrime.
RR: That’s right. I think one thing that’s really important to remember here is that investigative journalists, they communicate with sources quite a bit, and that’s very normal. It is typical for an investigative journalist to verify the information they’re getting, and find out what’s going to be in this data, why is it important, and have a bit of a back and forth. So the fact that he was communicating with this anonymous source isn’t in any way problematic.
And there’s nothing that we’ve seen in any of the chat logs that our lawyers—we have a wonderful attorney based in Brazil, who did an analysis of the criminal complaint, the original Portuguese complaint—and there’s nothing that we saw that was in any way indicating that Greenwald was urging the source to engage in any illegal activity, rather that this was more about confirming that he had received the documents that he needed in order to do the reporting on it, and verifying some of that.
I think that there’s some questions about what’s going to play out here, right. I mean, one of the things at the crux of this case is that the original leaks were about judicial misconduct. And so it’s worrisome to see an investigative reporter being brought through the same court systems that he exposed as having misconduct in them.
JJ: Or as the New York Times says, “raised questions” and “cast doubt,” which I thought was a bit gentle. Well, James Risen had an op-ed in the New York Times saying that Greenwald’s case, and that of Julian Assange—also charged with aiding his source, Chelsea Manning, to access a military database—that “they’re based in part on a new prosecutorial concept: that journalism can be proven to be a crime through a focus on interactions between reporters and their sources”; he called it a “detour around the First Amendment.”
And what I thought was also interesting, was Risen says governments like Bonsonaro’s and Donald Trump’s “seem to have decided to experiment with such draconian antipress tactics by trying them out first on aggressive and disagreeable figures.”
And here to me is where the public can come in. It’s worrisome if we start thinking, “Well, I don’t really like Julian Assange,” or “Greenwald has an axe to grind,”; we have to keep a clear eye on the principles here.
RR: I think that’s completely right. If we get down to it, these are relatively new tactics being employed to silence journalists who are confronting existing power structures. And a free society, when it’s functioning well, can tolerate investigative journalists, even those who are, as Risen says, “disagreeable.”
And, in fact, I think a free society thrives when it gets articles about corruption and misconduct, and there’s a sense that if something is wrong, there’s a way for there to be sort of a safety valve: Sources can go to the media, present true facts, and the public will find out. The idea that there’s this big backlash, using this relatively untested tool to silence journalists, is pretty concerning, and it’s something that I think we’re all waiting to see how it plays out, because, of course, Julian Assange, that case is not over yet. This case against Greenwald is not over yet. And so it will really be such a big deal if we see that laws designed for malicious hacking can basically be used to shutter journalists.
JJ: Part of what’s happened is a scramble around, if people are not willing to come to the defense of an Assange or an Ed Snowden or Glenn Greenwald, then we think, “Oh, because they’re not really real reporters, or they’re not really real journalists.” And there’s a kind of essentialism that we seek. But as you’re saying, this is information that the public has a right to know, and journalists have won prizes for it. So I guess I’d like to see media themselves coming out stronger in defense of journalism, and particular journalists, particularly when they’re under fire like this.
RR: And there’s no question that Glenn Greenwald is the epitome of a journalist. I mean, he’s a Pulitzer Prize-winning journalist. He has been at this for a very long time, and is himself a constitutional lawyer. So, for me, the Greenwald case is especially egregious, because there should be absolutely no question. And, in fact, the Brazilian supreme court, prior to this, had even upheld and preemptively stated that his relationship with the source was protected under Brazilian constitutional law.
I understand that there are people who want to distance themselves from Julian Assange, who aren’t happy with Edward Snowden, and the thing I keep coming back to is, this is about more than the people involved; it’s about the principles, and it’s about what kind of society we want to live in.
And journalism has become digital, right? We are living in a society that most of us are getting our news online or through various online media. And so we need to ensure that as the news evolves, our thinking about what is protected by the First Amendment, and by free speech laws internationally, also evolves.
JJ: Let me just ask you, finally: I know that EFF did a report a few years back. Let me just bring you back to cybercrime for a second. What did you have to say about how cybercrime laws could be shaped to comport with human rights, so that maybe they couldn’t be this tool in prosecutors’ hands?
RR: Yeah, thank you for asking about that. The Electronic Frontier Foundation put out a detailed report where we compared cybercrime laws across the Americas, throughout North and South America, and how they were being used. At the time, we were particularly interested in cases where security researchers — academics and others who are engaged in security research to help harden our systems and make the public more secure — were facing prosecution or legal jeopardy as a result of cybercrime laws. And we found that in our analysis, many of the laws across the Americas around computer intrusion are extremely hazy and vague, using vague terms that don’t adequately or clearly describe the activities they’re trying to punish, and also could carry pretty hefty penalties.
And we see that even in the United States, where the Computer Fraud and Abuse Act has very steep penalties, and can be applied with a lot of prosecutorial discretion. So given that, we made a number of recommendations; a couple of them, to hone in on it, were around ensuring that malicious intent was baked in, so that it would be clear that this law is designed just to go after, not those who are acting in the public interest to uncover security vulnerabilities, but, rather, actually people who are trying to illegally get data, or do other malicious things through computer intrusion.
And we also talked about ensuring that the penalties were basically similar to the crimes that were being committed. One of the concerns is that if somebody is engaged in an act that is illegal, if they’re doing it with a computer, that doesn’t mean that they should get 10 times as much time in prison as if they had done it not using a computer. And we need to make sure that just adding “through a computer” doesn’t wildly change the penalties associated with a crime.
I will say that the report we did was analyzing the use of these cybercrime laws especially around security researchers. And, again, now that we can see that these laws can be turned against journalists, that is a really worrisome trend, and especially dangerous considering how vague these laws are, and what powerful penalties they’re often associated with.
RR: Thank you so much for having me.Print