Key US Allies Collaborate On Espionage Laws Considered Harmful To Whistleblowers And Journalists

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Ministers and security officials in Australia, Sweden, and the United Kingdom have coordinated with the United States to develop new espionage laws.

Each of the countries have faced criticism from news media and civil society organizations for proposing laws that will harm journalists and whistleblowers' ability to report on abuse and corruption in their own and each other's countries.

These states have close intelligence ties to each other and the United States, and they have played some role in the extradition of WikiLeaks founder Julian Assange, whose prosecution is widely recognized as a threat to global press freedom. In fact, disclosures of the kind that Assange published have been cited as what the laws aim to make illegal.

FBI Director Christopher Wray had several days of meetings with “law enforcement partners in the United Kingdom” during July 2022. After these meetings, MI5 chief Ken McCallum promoted the "National Security Bill," the first change to UK espionage laws since 1989.

The law would purportedly address the perceived threats Wray and McCallum discussed.

McCallum and other intelligence officials' warnings and suggestions were frequently referenced by parliament members and government ministers who supported the bill when it was debated in the UK Parliament in November 2022.

Priti Patel, when she was UK Home Secretary, said the bill “was designed in close consultation with security services."

In Sweden, the 2022 Foreign Espionage Act, which was adopted last November, specifically criminalized disclosures that cause “substantial damage” to Sweden’s relations with other countries or organizations. That led reporters to warn that journalists revealing war crimes committed by the US government could be prosecuted.

The Australian espionage bill also defined information that “harm[s] or prejudice[s] Australia’s international relations” as illegal to disclose.

Australia Security Intelligence Organization (ASIO) Director Duncan Lewis, who advised the country's premier on their legislation, was asked at a parliamentary committee hearing, “Is there a connection, in your view, between our diplomatic and economic relations and our national security? In other words, if someone causes harm to our diplomatic relations with a foreign country, like the United States, can that harm our national security?”

"Absolutely," Lewis responded. "You would need [to] go no further than perhaps the case of [Edward] Snowden to think about that—the enormous damage that was done to various diplomatic relations as a result of the leaks that came out of Snowden.”

The Espionage and Foreign Interference Act of 2018 introduced a range of measures the Australia government claimed were meant to combat Chinese interference. Australia's attorney general flew to Washington to receive advice from the US government on legislation to combat this supposed threat.

A collection of media outlets, including The Guardian and News Corp, opposed the law, saying that “journalists and their support staff continue to risk jail time for simply doing their jobs” due to the possibility of being prosecuted for dealing with classified information.  

Since the legislation was passed, Australian Federal Police have raided the homes and offices of journalists who reported on war crimes in Afghanistan and the monitoring of Australian citizens' communications.

The ASIO gave “extensive operational briefings” on foreign interference to Malcolm Turnbull, when he was Australia's prime minister, and Turnbull noted their input as he introduced the legislation in Parliament.

ASIO Director Duncan Lewis explained what in part motivated the push to expand the country's espionage law. "Our international allies and partners with whom we share threat information tell us resoundingly that Australia is not alone in confronting a new threat environment, one that's different from what we've seen before. In ASIO's view, we must now adjust to this harsh reality."

Lewis pointed to UK Prime Minister Theresa May who had urged allied powers to do more to "clamp down on the hostile activity of foreign agents."

During parliamentary debate in the UK, Patel referred to these discussions.

"Let me say something about the legislation we want to introduce. We are learning from other countries, such as Australia—indeed, I had a bilateral meeting just last week. This is also part of the work of Five Eyes," Patel shared. "A lot of work is being done to look at the institutional impacts of hostile state activity, alongside issues such as foreign agent registration. We want to get this right through future legislation, and that is what we are working on."

Groups, such as Reporters Without Borders and the National Union of Journalists, wrote to lawmakers and warned that the bill conflated journalism with spying, expanded the definition of classified information, and disproportionately increased the penalty of espionage to life imprisonment.

Many of these new elements align existing laws with the United States Espionage Act, an antiquated law that was adopted over a century ago.

During a Novembr 2021 speech for the right-wing Heritage Foundation on the US-UK alliance, Patel acknowledged this fact.

“We will modernize existing counter-espionage laws to better reflect the contemporary threat; and we will improve our ability to protect official data and strengthen the associated offenses," Patel declared "Our strategic partnership must continue to address all this activity – which is uninhibited and growing along with all the other threats we see day in, day out."

The UK's proposed legislation updates the current espionage laws to now be applicable to non-UK citizens. Press organizations have complained, “The lack of geographic limits and the overly broad definition of the safety and interests of the United Kingdom can extend the reach of the bill across the globe.”

Australia’s new laws also apply outside of the country and like the UK include assisting (or benefiting in the UKs case) foreign entities, leading to criticism that officials are criminalizing those who work with foreign press outlets.

According to the Australian chair of the Five Eyes Law Enforcement Committee, the organization will arrest those who have committed espionage “no matter where those criminals are in the world.”

Swedish military and intelligence officials studied changes to espionage legislation at the behest of the Swedish government and used WikiLeaks' release of US diplomatic cables in 2010 as an example of a kind of leak that would harm Sweden's relationship with other countries if it happened today.

Officials also singled out the North Atlantic Treaty Organization (NATO) and the US as powers that were important to protect from damaging leaks.

In June 2022, Conservative Party parliamentary member Sir John Hayes asked Damian Hinds, who was the UK minister of state for prisons, parole, and probation, if "a WikiLeaks-type disclosure dressed up as being by a guardian of liberty or some such other nonsense" would be illegal.

“The defenses in part one of the bill provide law enforcement with several options for prosecuting disclosures, where the person is acting for or on behalf of a foreign power or where the disclosure would materially assist a foreign intelligence service," Hinds responded. "That can include bulk disclosures."

"To be clear, with this bill, the maximum sentence for an indiscriminate disclosure—a bulk data dump—will be higher than it is today if that act is done for a foreign power or the disclosure would materially assist a foreign intelligence service, even if not procured by that foreign intelligence service itself," Hinds further stated.

Canada, which is a Five Eyes country like Australia and the United Kingdom, has also followed their lead.  Canadian security officials briefed the press and politicians, claiming that China aims to influence Canadian democracy.

Security officials in Canada have submitted reports to their government requesting new security laws to prevent Canada from becoming a “weak link” amongst its allies.