Calls To Limit Speech In The Snowden Era Underscore The Importance Of A Free Press

The Snowden revelations have reignited a discussion about privacy — especially privacy in the digital age. That discussion will eventually, we can hope, not only reform how the government views the privacy of its citizens, but also how those citizens interact with private entities that might store massive amounts of their personal information.

It's stunning to consider how much better informed we are as a global citizenry thanks to Snowden's efforts and the journalists that have worked closely with him. They have carefully brought to light documents and information regarding the spying efforts of the United States government, and to a lesser degree, the British government on a scale that was previously unimaginable.

But the Snowden leaks have done more than uncover a secret world of surveillance. They are starting to drive change at the congressional level. Following revelations that the NSA taps the fiber-optic cables of the Internet, tracks the metadata of all phone calls placed in the United States, and forces technology companies to hand over user data, we've entered into a new era of transparency.

There are forces arrayed against this trend, however. The parts of the government that wish to remain hidden are not enjoying their time in the spotlight.

United States

In short, [NSA General Keith Alexander] is not much of a fan of free speech, an adversarial press, a transparent government, public accountability, or a great many other things that a constitutional, democratic republic requires to function.

Change is already under way. Bills in Congress are being proposed, with bipartisan and bicameral support, that would greatly curtail the legal authority, and therefore ability, of the NSA to collect as much data as it currently does.

The shifting tone in Congress — most recently and most notably the about-face of Senator Dianne Feinstein on the subject of the NSA — has been matched by a stiffly unshifting tone from the spy agencies themselves.

With its track record of being truthful already underwater, the NSA has managed to explain little in recent weeks — and complain much. It has become known that their talking points are as manufactured as their denials – there will come a time when leaning heavily on 9/11 will show weakness of argument, but we can have that talk some other time — now public, the public protestations of the NSA are becoming increasingly cardboardish.

But when the NSA and its ilk are clear, we can learn the most. And when it comes to something so intensely serious, clarity is useful. The NSA's General Keith Alexander recently made the following set of remarks (transcription by Politico):

"I think it's wrong that that newspaper reporters have all these documents, the 50,000—whatever they have and are selling them and giving them out as if these—you know it just doesn't make sense.

We ought to come up with a way of stopping it. I don't know how to do that. That's more of the courts and the policymakers but, from my perspective, it's wrong to allow this to go on."

It's somewhat difficult to tally just how much the general managed to get wrong in two short statements, but let's try. He's wrong that the documents are being sold; they are not. Stopping "it" would mean stopping the free press, in essence overriding the First Amendment. That's not a good idea. He's correct that it would be up to "courts and the policymakers" to gut free speech in the country, but he's wrong in that it is not "wrong to allow this to go on."

In short, the general is not much of a fan of free speech, an adversarial press, a transparent government, public accountability, or a great many other things that a constitutional, democratic republic requires to function.

Let's look at just how bad an idea it would be to follow his advice.

If we did not allow newspapers, blogs, Twitter users, writers and readers of all shapes and sizes and sorts to publish what they might, and learn what they will, then we would not know that the NSA was tapping the data connections between Yahoo and Google data centers in foreign countries. Why foreign countries? Because the rules that guide the NSA are looser in foreign countries, and so it can do what it can't in the United States. What we have learned is plain: If there is data, the NSA wants to tap, collect, store, and then analyze it at will.

Given the history of privacy, and the historical backing of the Fourth Amendment, this isn't much in line with the American Experiment. To then prevent the American citizenry from finding out that their legal protections were being hollowed out not good, and the general is wrong.

Britain

Across the pond, this is a bit more explicit. Here's The Guardian, in August [emphasis mine]:

I received a phone call from the centre of government telling me: "You've had your fun. Now we want the stuff back." There followed further meetings with shadowy Whitehall figures. The demand was the same: hand the Snowden material back or destroy it. I explained that we could not research and report on this subject if we complied with this request. The man from Whitehall looked mystified. "You've had your debate. There's no need to write any more."

During one of these meetings I asked directly whether the government would move to close down the Guardian's reporting through a legal route – by going to court to force the surrender of the material on which we were working. The official confirmed that, in the absence of handover or destruction, this was indeed the government's intention. Prior restraint, near impossible in the US, was now explicitly and imminently on the table in the UK.

The last sentence is key, as it describes a process by which what is fit and not fit to be published is determined before publication. In August The Guardian stated that such a thing was "near impossible" in the United States. And yet, General Alexander recently called for "a way of stopping it," again with "it" being the reporting about the Snowden documents. Alexaner continued: "It's wrong to allow this to go on." So, the general is calling for prior restraint, which has long been a firewall between censorship and the public learning what it might.

There are fresh threats from the British government, however, that also bear telling. Here's current Prime Minister David Cameron on the continued leaks (via The Guardian):

We have a free press, it's very important the press feels it is not pre-censored from what it writes and all the rest of it. The approach we have taken is to try to talk to the press and explain how damaging some of these things can be and that is why the Guardian did actually destroy some of the information and disks that they have. But they've now gone on and printed further material which is damaging.

I don't want to have to use injunctions or D notices or the other tougher measures. I think it's much better to appeal to newspapers' sense of social responsibility. But if they don't demonstrate some social responsibility it would be very difficult for government to stand back and not to act.

Sadly, his government has already taken to smashing laptops of journalists and threatening prior restraint. He has now introduced new legal methods as potential tools to increase pressure. Also, there is a certain sliminess to the comment that the press "feels it is not pre-censored from what it writes." There is a large gap between that and the press in fact being free to write whatever it wishes.

Hell No

It's plain that the governments of the United States and Britain would prefer it if we knew nothing of their surveillance activities. With that in mind, we now do, and they want to stop the continued leaks.

But as we are seeing from congressional activity in the United States, the leaks are producing change. Which is precisely what the NSA and GCHQ do not want. Tough. If to get their way they think for a moment we are willing to give up the right to free expression, thought and writing, then they can go to hell.

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