Edward Snowden wrote these words in a text message to documentarian Laura Poitras, as they worked together on the disclosure of leaks about the NSA’s massive surveillance apparatus and her new film “CITIZENFOUR.” While the ominous warning seems to befit a spy thriller, it is cautionary advice that many documentary filmmakers must heed in a climate of increased corporate and government control.
From Joe Berlinger’s “Crude,” which was embroiled in a legal struggle with Chevron over possession of his outtakes, to Fredrik Gertten’s “Bananas!*,” which faced subpoenas, a lawsuit and a smear campaign from the Dole Food Company, documentary filmmakers who strive to expose the wrongdoings of dominant powers always face a risk that these massive organizations will find ways to stop them, seize their footage, or use their material for their own gains.
So far, aside from lengthy detentions and harassment at U.S. airports and the threat of being tracked, Poitras has not encountered any overtly repressive actions by the U.S. government as a result of her filmmaking. But she chose to move to Berlin and make “CITIZENFOUR” in Germany explicitly to give herself added legal protections just in case the U.S. government subpoenaed her or her footage.
While making the film in Berlin, Poitras and her team also took extreme measures to protect the material and make sure nothing about the production could be monitored.
“CITIZENFOUR” producer and editor Mathilde Bonnefoy said everything involved with the making of the film was encrypted. Hard drives were protected with TrueCrypt, an encryption utility, “and the more sensitive the material, the more layers of encryption,” Bonnefoy said in a Skype interview.
Much of the film was edited in an empty apartment below where Bonnefoy lives in Berlin. In addition to obvious safeguards — they kept the doors locked —Bonnefoy initially kept the Snowden material with her at all times.
“During the weeks after the Hong Kong interview, there were moments of paranoia,” she admitted, “where I kept the Snowden disk with me in my handbag when I left the house.”
To communicate off-site, they used encrypted email tools, like GPG, texted with OTR (Off-the-Recording Messaging) technology, and in some specific cases, used the “Tails” operating system (or The Amnesic Incognito Live System), which preserves privacy. “All of our editing computers were ‘air gapped,'” added Bonnefoy, meaning the systems had never been connected to the Internet.
During editing, Bonnefoy always wore headphones, just in case someone was listening. “And also we’d carry cell phones and computers out of the room for viewing sensitive scenes or for complete run-throughs of the cut,” she added.
As the production evolved and they began to show the film to producers and distributors, Bonnefoy said they had viewers sign nondisclosure agreements. But above all, at that point in the process, “It was purely about trust,” she said. “We depended on good old trust.”
Other filmmakers have taken similar precautions.
Brian Knappenberger, director of “The Internet’s Own Boy: The Story of Aaron Swartz” (2014) and “We Are Legion: The Story of the Hacktivists” (2012) — which, like “CITIZENFOUR,” addresses issues of government secrecy and the right to privacy — used many of the same encryption technologies in the making of his films. “You have to understand encryption,” he said.
For Knappenberger, it’s the only way to truly protect a source, because, as he explained, “It doesn’t matter how much you want to go to bat for your sources, because everything is being monitored: We have to be incredibly careful.”
While making “If a Tree Falls: A Story of the Earth Liberation Front,” which focuses on an environmental activist who was charged with arson and conspiracy, director Marshall Curry removed hard-drives containing the footage from his office and stashed them away off-site.
But he also felt that his subject, Daniel G. McGowan, needed to be careful about what he said on camera. “I told him I would protect him as much as I could and I would fight anything in court as much I could,” said Curry. “But I wouldn’t go to jail for him.”
Most filmmakers shouldn’t have to. Poitras, for one, believes she wouldn’t have to comply with such pressures. “If I’m ever called before a grand jury, I’m not going to testify,” she told Indiewire earlier this week. “I’m still bound by source protection.”
But not all filmmakers can claim “reporter’s privilege” — the right not to be compelled to testify or disclose sources and information in court. Such legal protections can be murky (see the Reporter’s Committee for Freedom of the Press), and several filmmakers have found themselves obliged to give into legal pressures where, in particular, the sources and material were not given confidentially.
Most famously, Berlinger was forced to give over a portion of unused footage from his 2009 documentary “Crude” to the oil company Chevron, who used the material in a lawsuit over its polluting practices in Ecuador. The legal wrangling took months, but Berlinger’s case helped set an important precedent.
According to attorney Chris Perez, who co-drafted an amicus brief on behalf of Berlinger, the court refused to grant the filmmaker journalistic privilege, because they saw him working on behalf of the plaintiffs in the case against Chevron — and not as an objective journalist. Perez contrasts the Berlinger case with New York City’s efforts to obtain outtakes from Ken Burns’ “The Central Park Five,” which the courts ultimately denied, because Burns was seen as an independent investigator.
“It doesn’t mean you can’t have a point of view,” said Perez, “it just means you can’t produce a film on behalf of one of the sides of a case.”
There is also a crucial distinction between cases involving confidential sources and non-confidential sources, where the latter are less protected. Either way, fighting subpoenas or dealing with other legal actions can take tons of time and money — both of which documentary filmmakers usually lack.
For that reason, filmmakers — especially those dealing with subjects related to the criminal justice system — must tread carefully, with a legal team and insurance to protect them.
While working on her 2002 film “The Execution of Wanda Jean,” documentary filmmaker Liz Garbus said, “There were always concerns that anything [Wanda Jean] said could be subpoenaed by the other side and could be used against her.”
Given the possibility, Garbus said it was important for her and partners — in this case, HBO Documentary Films, which also backed “CITIZENFOUR” — to be on the same page from the very beginning of the project in case they faced pressure from state prosecutors. “I did have conversations with HBO and we all decided we would fight any subpoena,” she said.
But sometimes the pressures of powers much greater than the lone documentary filmmaker can feel insurmountable.
“Bananas!*” filmmaker Fredrick Gertten, who faced repeated attacks from the Dole Food Company — including a lawsuit (which was eventually withdrawn) — said in an email there was ultimately little he could do to protect himself.
“If powerful assholes like Dole want to suppress free speech and free media they can do it. They have the money and the lawyers,” he said. “The only thing we can do is to make good films, check facts and have a lawyer checking the cut.”
“I would also add one important thing,” continued Gertten. “Find a way to handle the media spin that comes with a lawsuit against you. The spin is very stressful and in our case also meant that friendly people kept a distance.”
In terms of practical advise, “E&O insurance helps a lot,” Gertten said, referring to the errors and omissions insurance, which should, to an extent, cover the costs of extenuating legal circumstances that filmmakers encounter.
With so many risks for independent documentary filmmakers, especially when taking on increasingly oppressive powers, it’s a wonder they’re able to continue, at all. “It’s one of the effects of mass dragnet surveillance — the intimidation of journalists,” said Knappenberger. “It’s a chilling effect and it’s scary.”
But filmmakers like Poitras, Berlinger, Curry, and others are apparently not letting the bullying tactics stop them. As Knappenberger added, “It just makes me want to fight back harder.”