Ethics of Intelligence for the Media: Journalism in armed and ‘silent warfare’ (espionage and information war)
This post is part of a series about the ethics of intelligence for the media.
Reuters handbook asserts that "[i]ndependence is the essence of [its] reputation as a 'stateless' global news organi[z]ation, and is fundamental to the trust that allows [it] to report impartially from all sides of a conflict or dispute."
In 2010, however, media scholar, Jay Rosen, dubbed WikiLeaks the "first stateless media organization" explaining that it is "organized so that if the crackdown comes in one country, the servers can be switched on in another."
A "big multinational" like "Newscorp," states WikiLeaks' founder, Julian Assange (or presumably Reuters) is "structured in such a way that you can get at its key components."
However, "[I]f an organization's assets are primarily its information, then it can be transnational in a way that is quite hard to stop as a result of cryptography," Assange continues.
WikiLeaks' structure and capabilities are "meant to put it beyond the reach of any government or legal system," writes Rosen.
Up until WikiLeaks, the "press [was] free to report on what the powerful wish to keep secret because the laws of a given nation protect it. But Wikileaks is able to report on what the powerful wish to keep secret because the logic of the internet permits it," Rosen adds.
The same capability could be used to describe transnational organized crime, and cyber-crime generally.
Transnational Organized Crime, Cyber-crime, and Cyber-espionage
Globalization, world-wide telecommunications, and cryptography have catalyzed transnational organized crime and cybercrime's exponential growth, allowing actors and other participants to operate in multiple-jurisdictions to evade law enforcement.
The dispersed network infrastructures of transnational organized crime (and cybercrime, generally) requires a high degree of multilateral consensus and implementation to counter (that is, both internationally and domestically).
Let's take one example.
Russian organized crime (Solntsevskaya Bratva) is comprised of both criminal hunter gatherers, who trade and sell licit and illicit goods; but what makes the group the largest and wealthiest of its ilk globally is its ownership of the grove.
Its structure is highly decentralized, notes Federico Varese, a professor of criminology and an expert on Russian organized crime at Oxford University.
It was born in the unregulated markets, racketeering, and public corruption that sprung into the void left by the demise of the former U.S.S.R., including its official and black-market economies.
Russian organized crime enterprises have penetrated multiple layers of local and regional licit and illicit economies; so that "whole sectors are under their rule," writes Varese.
In this manner, the criminal organization competes with legitimate state governance.
Because of its penetration, the group permits or denies entry to market to businesses that wish to conduct commerce.
In the Russian Federation, businesses pay organized crime ten to sixty percent of their revenue before taxes in protection money, according to an estimate published twenty-years ago.
Capital that could go to support the legitimate state is thereby siphoned off, weakening it. This phenomenon incentivizes a vicious cycle of public corruption, because the state is unable to pay civil servants adequate wages, leaving them further open to bribery.
Because of the inherent challenge of measuring black and grey economies involving organized crime (including cybercrime), scholars use political corruption as one of several indicators for the presence of transnational organized crime.
Criminals associated with Russian organized crime are also able to purchase services from the state itself, including wiretapping or the use of blue flashing lights on one's automobile.
Russian organized cyber-criminals have also been tied to Moscow operations in political warfare against the West, notably in Europe.
However, according to one expert, Mark Galeotti, such activities are undertaken when Russian intelligence "has no alternative."
Russian intelligence services exchange freedom from prosecution for hackers associated with organized crime, while building their own in-house capabilities.
In 2007, for example, Russian organized crime associated hackers supported cyber-attacks on Estonia, and Georgia in 2008. They have also been tied to ongoing cyber operations in the Ukraine.
The use of such non-state actors provides the Russian Federation and its military and intelligence services with plausible deniability.
Further, cyber-criminals associated with Russian organized crime have also been used by the nation's intelligence services to covertly move people and good across borders.
Russian organized cyber-criminals are also adept at laundering the organizations ill-gotten gains. They do this, for example, by selling them corporate accounts in the U.S., Germany, and the U.K.
WikiLeaks' Information 'State of Nature' or War
So, what do media professionals and organizations ethically owe the public, their governments, and the international community?
According to Assange, an exigent condition exists that has altered that calculus.
The internet, writes Assange is "a threat to civilization."
The internet, Assange continues, has altered the "nature of states [themselves]...transfer[ing] power over entire populations to an unaccountable complex of spy agencies and their transnational corporate allies."
Because of this phenomenon, Assange asserts that the internet has eroded the legitimacy of nation-states - even ones that reflect what he describes as possessing "democratic surface phenomena."
Powerful states that control the physical aspects of the internet, Assange argues, can collect and mine "every relationship expressed or communicated, every web page read, every message sent and every thought googled, and then store this knowledge, billions of interceptions a day, undreamed of power, in vast secret warehouses."
Assange writes that this power asymmetry itself between individuals and nation-states enables the latter to achieve "total domination" over civil and political society.
Assange's analysis of the illegitimacy of nation-states, which he contends have been captured by controlling factions, does not address questions of the rule of law or sovereignty, the foundation of international law.
"Sovereignty regulates relations between the rulers and the ruled, as well as relations between sovereign entities in the international arena," explains political scientist, Mark Bevir.
In addition, "[s]tates enjoy sovereignty over any cyber infrastructure located in their territory and activities associated with that cyber infrastructure," contend experts in international law governing cyber warfare and peacetime legal regimes.
The same experts note that "international laws do not prohibit espionage [by nation-states] per se," but they concur that some methods of conducting cyber-espionage may be unlawful.
Each surveillance operation conducted by a nation-state (including bulk or "mass" collection, for example), needs to be considered on its own merits; facts of which must be balanced against individual rights and their lawful limitations with legitimate purpose, note the same experts.
Nevertheless, whether all information on the internet exists as the expressions of stateless "young citizens" who together comprise a globalized civil society (as Assange contends), which is set in opposition to powerful, but illegitimate hegemons; or whether the internet is an anarchic 'state of nature' (or war), where all are belligerents (be they state, state-supported, or non-state), Assange describes his organization as operating concurrently under the conditions of both war and peace (perhaps because he is confused or conflating the two).
'Intelligence Agency of the People'
Assange and WikiLeaks also seem to suggest that what powerful nation-states lack (that is, legitimate authority) WikiLeaks possesses, despite the organization's lack of sovereignty (in the conventional sense, that is, its ability to wield power and to control its own territory).
For example, in 2007, when the website first appeared, WikiLeaks aspired to be an "intelligence agency of the people" that was both "open source and democratic."
WikiLeaks purportedly aspired to become "far more principled" and "far less parochial than any governmental intelligence agency," because it had, it claimed, "no commercial or national interests at heart; its only interests [would] be truth and freedom of information."
Intelligence ethicist and scholar, Ross Bellaby, writes that intelligence collection (which would presumably apply to WikiLeaks' aspirant claim to become an "intelligence agency of the people") under Just War Theory, "needs to be authori[z]ed by a body that is able to ensure that Just Intelligence Principles are being met fully and without bias." Bellaby writes:
"[I]n order for intelligence collection to be just, there must be a legitimate authority present to sanction the harms that might be caused. Since some forms of intelligence collection will involve a degree of harm, society needs to vest authority to act in certain institutions or those that represent the political community and their wishes."
Taking a step-back, the rise of mass leaking and the emergence of WikiLeaks could be viewed (in part, at least) as a reaction to perceived or actual intelligence failures by Western governments resulting: for example, from the intelligence imbroglios that preceded the terrorist attacks on September 11, 2001 and the strategic blunder with regard to weapons of mass destruction and the 2003 U.S. invasion of Iraq.
Just prior to WikiLeaks' launch, for example, there was a reported decline in public trust in Western intelligence enterprises.
Gallup's 2005 poll on public doubt in the "smarts of the U.S. Intelligence Community" found that "52% of Americans [were] not confident that 'the U.S. [I]ntelligence [C]ommunity is giving the administration accurate information about possible threats to the U.S. from places such as Iran and North Korea."
If Johannes Gutenberg's printing press brought about the Protestant Reformation, then in a secular age of information, WikiLeaks proposed to cut out the middlemen (that is intelligence agencies and the traditional media ) and bring raw intelligence, which the organization described as "overt fact to inform citizens about the truths of their world," according to an early iteration of its website.
Yet, raw intelligence in both war (but also peace, or 'silent warfare') rarely conveys the 'truth' by itself.
Setting aside for now philosophical discussions about how the 'truth' requires discernment, let us consider at least how raw intelligence or the facts themselves can mislead.
Journalists have long discussed the requirements of not only reporting on the "facts truthfully," but also the "truth about the facts," writes Bill Kovach and Tom Rosenstiel, citing the 1947 report by the Hutchin Commission on a 'Free and Responsible Press,' in their book, 'Elements of Journalism.'
Facts, by themselves, may result in faulty analysis or reporting that is "factually correct but substantially untrue," states the Hutchins Commission report.
Raw Intelligence v. the 'Truth'
While ethics guidelines for media practitioners (like the Society of Professional Journalists' 'Code of Ethics') outline that "access to material when it is relevant and appropriate" should be provided, is it ethical to forgo analysis altogether and simply publish raw intelligence? What about publishing intelligence that one cannot properly vet for both accuracy or context?
Raw intelligence, as former British intelligence officer, Michael Herman, explains, becomes finished intelligence by analysis and synthesis.
This raw form of "unevaluated" information or data can derive from many sources, including "human [sources] (spies), communication signals (intercepted phone calls and e-mails), measures and signals (technical data), and imagery (pictures) from satellites and planes," writes the former National Security Council chief liaison with the national security committees of Congress, Michael Allen.
Finished intelligence may be tactical, operational, or strategic.
Tactical refers to targets, operational to unit level planning, and strategic is "for planning and policy formation," write two experts on the ethics of law enforcement intelligence.
Therefore, the proposition that leaked documents published on the internet (whose provenance alone is purportedly verified ) are representative of the facts or the 'truth' is both provocative and faulty, at least from the perspective of intelligence analysis.
More importantly, this proposition is also provocative from other fact-finding practices, such as criminal justice, as well as journalism.
During the intelligence analysis process, the source, communication channel, and credentials of the evidence contained in raw intelligence are evaluated.
Then the evidence, both divergent and convergent, is further evaluated and synthesized. Moreover, assumptions and intelligence gaps are identified, so that further collection strategies can be developed. In this way intelligence analysts are trained to make judgements in the midst of ambiguity.
In addition, denial, deception, and signaling (or other forms of perception shaping) are considered.
In other words, intelligence analysts have to consider that what they are "seeing (or not seeing)" is "what the opponent wants [them] to see," writes intelligence veteran of fifty-years and author Robert Clark.
Intelligence analysts also consider their own involuntary (or cognitive) and other kinds of biases in evaluating raw intelligence.
While raw information itself may be neutral, human perception is not.
Human perception is a "process of inference," notes a sixty-year intelligence veteran, Richard Heuer.
Human reasoning employs short-cuts or what former CIA veteran, Morgan Jones, describes as "simplified information processing strategies."
These cognitive biases compel humans to perceive patterns in situations or in sequences of events - for example, cause-and-effect relationships - even when such arrangements or inter-dependencies do not exist. [Side note: e.g. Q]
Heuer also notes that such cognitive biases are distinct from "cultural bias, organizational bias, or bias that results from one's own self-interest."
They are also separate from "any emotional or intellectual predisposition toward a certain judgment."
Cognitive biases can also trigger a person to involuntarily disregard or discount information because it does not fit into an expected pattern, or, notably, because it resides outside the range - or the facilities - of an individual's immediate focus.
In this way, these involuntary mental tendencies enable humans to process "new information extremely rapidly," but they can also produce false interpretations and flawed analyses, notes Jones.
The proposition that documents or information are neutral, begs a deeper question as to whether media practitioners, who commentate on leaked intelligence are ethically responsible to the public, like Intelligence Community analysts for analytic failures, politicization, and/or cognitive biases when assessing or providing judgements about closely held information or programs (especially when reporting and publishing mass leaks of U.S. intelligence).
Ethics guidelines for journalists do caution, prohibit, or qualify the use of unnamed or anonymous sources, especially for stories derived from single sourcing.
When such sources and material are used, journalists are ethically required to vet and corroborate them for accuracy, and to substantiate the information contained within.
In 2017, however, Buzzfeed News published the so-called "Steele dossier," based on raw human intelligence (or HUMINT).
According to BuzzFeed, the "explosive" document contained "allegations that the Russian government has been 'cultivating, supporting and assisting' President-elect Donald Trump for years and gained compromising information about him."
A former British intelligence officer had authored the material for a private research firm and its clients, which included an online media outlet and two US presidential candidates.
At the time of publication, BuzzFeed had not established the credentials of the dossier author. BuzzFeed also admitted that claims within the document that were published were unverified and contained known errors.
They also outline the requirements for verification and attribution for facts and information.
BuzzFeed justified its decision to publish the dossier saying it did so: "[S]o that Americans can make up their own minds about allegations about the president-elect that have circulated at the highest levels of the U.S. government."
That the documents had reportedly been in the possession of or transmitted by government officials meant the material was newsworthy in itself, according to Mark Schoofs at a journalism panel I observed in 2019.
In this way ethics considerations about the collection, analysis, and publication of intelligence by media practitioners extend beyond classified material owned by the U.S. government.
Such considerations also concern personal identifying information and the privacy rights of individuals.
As a collector (passive or otherwise) and publisher of raw intelligence, WikiLeaks could be said to breach a principle that its founder argues that Western intelligence services have abused, namely "privacy for the weak and transparency for the powerful."
In 2016, for example, the Associated Press concluded that WikiLeaks' mass-disclosures had "included the personal information of hundreds of people - including sick children, rape victims and mental health patients." WikiLeaks' "mass publication of personal data is at odds with the sites claim to have championed privacy," the AP concludes.
WikiLeaks' as Self-described 'Combatant'
"Over the last six years WikiLeaks has had conflicts with nearly every powerful state. We know the new surveillance state from an insider's perspective, because we have plumbed its secrets. We know it from a combatant's perspective, because we have had to protect our people, our finances, and our sources from it. We know it from a global perspective, because we have people, assets and information in nearly every country. We know it from the perspective of time, because we have been fighting this phenomenon for years and have seen it double and spread, again and again. It is an invasive parasite, growing fat off societies that merge with the internet. It is rolling over the planet, infecting all states and people before it."
For Assange and his organization, the "call to arms" includes the use of cryptography to enable sources to anonymously leak secret or censored material.
During the "First Crypto Wars" in the 1990s, the U.S government classified encryption as a munition in order to restrict its export.
Assange writes, "It is time to take up the arms [or cryptography] of our new world, to...secure self-determination where we can, to hold back the coming dystopia where we cannot, and if all else fails, to accelerate its self-destruction."
Yet, Assange, and WikiLeaks associates, Jacob Appelbaum and Sarah Harrison, have also called for "acts of resistance" by politicized computer programmers or hackers (specifically system administrators, like Edward Snowden), who have or can obtain access to the information systems of powerful organizations and governments, and subsequently leak the "knowledge" and true "history" found in the primary source documents possessed by those entities for the purported purpose of equalizing the information asymmetry previously described (what Assange also refers to as an "information apartheid.")
This imperative for "sysadmins of the world [to] unite" includes infiltrating powerful organizations and governments to leak documents.
Citing an interview with the former director of the CIA and NSA, retired U.S. Air Force General Michael Hayden, who remarked that the Intelligence Community recruits from "Edward Snowden's generation," while protecting Western intelligence agencies "from the very small fraction of that population that has this romantic attachment to absolute transparency at all costs," Assange responded:
"And that is us, right? So, what we need to do is spread that message and go into all those organizations in fact, deal with them. I am not saying, don't join the CIA. No, go join the CIA. Go in there. Go into the ballpark and get the ball and bring it out with the understanding with the paranoia that all those organizations will be infiltrated by this generation - by an ideology that has spread across the internet. And, every young person is educated on the internet."
Journalists are Neither Belligerents, Nor Spies
The proposition that WikiLeaks is at one time an aspirant quasi "intelligence agency for the public" and at another a "media organization," as well as a "combatant," raises serious questions about the organization's ethics framework.
Journalism, as a discipline, does not exist in a special or exigent condition even when media professionals are covering armed conflict.
Journalists are neither combatants, nor spies.
They are civilian non-combatants.
The Geneva Conventions provide civilian journalists special protection in the context of (or related to armed conflict) as long as they do not participate directly in hostilities.
Moreover, experts in international law contend that journalists, as civilians, must only be afforded "respect," and not protection from cyber-attacks specifically under the law of war.
The same experts also conclude that the "law of armed conflict does not prohibit the censorship of journalists by cyber or other means."
Notably, and for this reason, media practitioners and their advocates routinely emphasize the civilian and, therefore, protected nature of their work when reporting on armed conflicts.
Within the context of International Humanitarian Law and armed conflict, determining if WikiLeaks is a combatant (as Assange literally or figuratively describes his own organization) relies in part on the organization's relationship to a nation-state actor or WikiLeaks' existence as an organized armed group.
The latter determination presumably requires that WikiLeaks has "an organi[z]ational chart indicating a command structure, the authority to launch operations bringing together different units, the ability to recruit and train new combatants, and the existence of internal rules."
Moreover, "When non-State actors engage in cyber operations related to an armed conflict, their activities are subject to the law of armed conflict," and depending on the specific circumstances such "an organized armed group engaging in cyber operations may become party to a non-international armed conflict," contend experts.
In the context of organized armed groups, the "concept of 'attacks' presumably would not include the dissemination of propaganda, embargoes, or other non-physical means of psychological or economic warfare" according to a head of the operational law unit at the International Committee of the Red Cross, Cordula Droege.
My next post in this series will expand further on this discussion about journalism in armed conflict and 'silent warfare' (or espionage and information war). Stay tuned.