Legal standards vary, are often only applicable in a national jurisdiction, and do not necessarily follow international standards. Some states also may guarantee rights on paper, but do not respect them due to a lack of a real division of power with an independent legal system. Journalists, therefore, should not simply rely on their rights, but should be aware of how capable their governments are to violate them.
2. “Offline laws” might be applicable to the online world
As the internet is (at least for some states) still relatively new, some areas are not fully regulated yet. Also, the internet allows people to constantly develop emerging technologies, and states will always be a little bit “behind”. However, if something is not regulated, it does not automatically mean that it cannot be criminalised. Governments mostly argue that “the rules of the offline world also need be applicable to the online world.” They can be creative in arguing that the media has committed “crimes” on the internet or while using digital technologies – for example: encryption.
That is why journalists should use new tools with a professional sense of caution and check in advance if, for example, the use of an emerging feature can be considered a crime in their country – can it, in the end, cause more harm than benefit?
3. Targeted versus mass surveillance
Most of the states make a legal difference between targeted and mass surveillance. Targeted surveillance means that an authority already has a reason to suspect an individual and believes that surveillance of that specific person may be necessary. The authority would use it to prove its suspicion. Mass surveillance means that an authority does not have a concrete suspicion but wants to collect as much data as possible and then searches for suspicious behaviour.
Targeted and mass surveillance may be regulated differently in national laws, but both can become dangerous for journalists and their sources. Therefore, journalists should reflect both measures in their threat model and inform themselves about the legal situation in their country.
4. Legal right to encryption vs. legal prohibition of encryption
It is not legally decided on an international level, whether or not people have a right to encryption and anonymity to exercise their right to freedom of expression, or if the states are allowed to prohibit its use. In 2015, UN special rapporteur David Kaye submitted a report to the Human Rights Council and explained that both encryption and anonymity deserve strong protection. However, as states also have the right to interfere with human rights offline in certain circumstances, they may also be legally allowed to limit rights to use encryption and anonymity. Indeed, some states have already prohibited the use of certain encryption technologies or of VPNs. Consequently, journalists may not completely rely on these rights, especially if their governments do not respect the rule of law.
5. Cooperation between companies and states
In the first place, it makes a difference as to who collects data; whether a company or a state. While companies mostly do this for business purposes, states do this to exercise their monopoly of power. However, the data is not stored in isolated silos and the states are regulating the companies more and more to get access to the data stored with them as well. For example, email providers or social networks may have to hand over data about their users and their communications if they are legally bound to this. Journalists have to take this into account and especially inform themselves about agreements between companies and their governments. This could be done in the stated terms of the service and national laws.