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Freedom of Information, Government Secrets and the Challenge of New Technology

By Law Review on Friday, February 28th, 2014
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By:  Michael P. Seng[i], Professor, The John Marshall Law School

I.  Introduction

The United States government’s actions against Sgt. Chelsea Manning and Edward Snowden and other whistleblowers raise serious questions about freedom of information, government secrets, and new technology.  The Obama administration has prosecuted more persons for leaking government secrets than the number previously prosecuted during the entire history of the United States.  An effective and vibrant democracy depends upon an informed citizenry.  Citizens cannot participate in their government without knowing what the government is about. Freedom of information and transparency are thus essential attributes of any democracy.

Yet, every government prefers to operate in secret.  Often secrecy is imposed in the name of efficiency or to protect the privacy of persons, but more often it is imposed to avoid embarrassment and accountability.  Legitimate law enforcement concerns require some secrecy, but law enforcement must be transparent or the public will not be protected against unlawful or invasive law enforcement methods.  Secrecy in international relations is necessary when the government is conducting delicate negotiations with a foreign power or when it is involved in national defense or espionage.  But the public has an important stake in how the government conducts international relations, and too much secrecy in the international arena can undermine democratic institutions at home.

Efficiency can be achieved without impairing the public’s right to know.  Personal privacy can be protected by narrow restraints on the release of information. Embarrassment and accountability can never justify governmental secrecy.  Indeed, we need information to hold public officials accountable.  I will address from an American perspective the tension between freedom of information and the government’s legitimate concerns for secrecy.  However, the tension is present in democracies everywhere.  A democracy must protect freedom of speech and press or it is not truly a democracy.  The language of the United States Constitution sets no limits to freedom of speech and press.  But courts have not read this language so strictly and, therefore, the tension present in the United States between freedom of information and government secrecy are similar to those tensions that exist in all other democracies.

II.  Background

Secrecy has been at war with transparency in the United States since the very beginning.  The American Constitution itself was drafted behind closed doors.  The Bill of Rights in the American Constitution lists speech and press as protected freedoms, but it does not explicitly mention freedom of information.  Throughout American history there has been debate about freedom of information and governmental secrecy.  The debate has become particularly heated today.  The Government is doggedly pursuing Edward Snowden for leaking national security information.  It has prosecuted Chelsea Manning and other whistleblowers for the same reason.  The stakes are stated to be so high because of the so-called “War on Terrorism” and the fears that were inspired by the 9/11 attack on the World Trade Center in New York.

The stakes are also high because of the emergence of new technologies that have revolutionized communications and made it possible for persons all over the world to access information instantaneously.  The communications revolution also makes it easier for the government to spy on individuals and track down perceived law-breakers and enemies.  Technology thus presents opportunities for the spread of information, but it presents opportunities for a more invasive government.  Also, technology allows hostile governments and individuals to access information that they can use to destroy democracy and civil society.  The stakes are high, and the solutions are not clear.   Technology has changed the way we receive and transmit information.  The “press” today is quite different from the press of even twenty-five years ago.  Who is the “press” and what do we mean by “freedom of the press?”  We must answer these questions before we can articulate the right to information and the limits that the government can impose to insure secrecy in the name of national security.

  1. The Constitutional Right to Know

The First Amendment to the United States Constitution speaks in absolute language: “Congress shall make no law . . . abridging the freedom of speech, or of the press; or the right of the people . . . to petition the Government for a redress of grievances.”  The First Amendment protects all persons, and specifically refers to “the press.”  The word “press” is not defined and the question has arisen whether “the press” has special privileges under the First Amendment, and if so, who is “the press?”  We know the establishment press.  It includes the New York Times and the Washington Post.  The press probably also includes the National Inquirer and Penthouse Magazine. But today, does everyone who establishes a “blog” become “the press?”

While individual Justices on the Supreme Court have argued for a privileged position for the press,[1] the Court itself has been reluctant to adopt such an approach.[2]  Justice Burger stated in First National Bank of Boston v. Bellotti,[3] that the Press Clause does not confer special and extraordinary privileges on the institutional press.  Thus, the approach of the Court has generally been to collapse freedom of speech with freedom of press and accord the same rights to everyone. Under this approach the Court has allowed press access to criminal trials, because trials are open to the public.[4]  But the press is denied special access to deportation proceedings, prisons and jails, and other facilities not generally open to the public.[5]

Yet, the freedom of the press is meaningless if the press has no access to governmental information.  The Supreme Court recognized in Grosjean v. American Press,[6] that an “informed public opinion is the most potent of all restraints upon misgovernment.” Nor can the ideal expressed in New York Times v. Sullivan,[7] “that debate on public issues should be uninhibited, robust, and wide-open,” be realized without access to government information.

Similarly, the First Amendment talks about the right to speak, but the Court has held that the right to speak implies the right to receive information.[8]  In Houchins v. KQED,[9] the Supreme Court rejected the broad principle that freedom of governmental information is implicit in First Amendment guarantees.   In a plurality opinion, Justice Burger held that there was “[n]o First Amendment guarantee of a right of access to all sources of information within government control.”  He stated that the government was not compelled to provide information it did not want to give up.

Even if there is no broad right to government information, the Supreme Court held in New York Times v. United States (The Pentagon Papers Case),[10] that the government could not restrain the publication of secret government information unlawfully obtained by the press.  The Court relied very heavily on precedent that the government could not issue a prior restraint against publication except possibly in the most extraordinary circumstances.  The Supreme Court left open the question whether the government employee who stole the information or the newspaper or its reporters could be criminally prosecuted for their misconduct.  Many of the justices individually supported the criminal option as a means of deterring the theft and publication of national security information.

2.  A History of the Government’s Interest in National Secrets

The tension between national security and freedom of information has been with us from the beginning.  President Washington denied Congress access to information regarding the negotiations leading up to the Jay Treaty with England.  President Jefferson raised executive privilege when he was summoned to produce information during the Aaron Burr treason trial.  During World War I, Congress passed the Espionage Act that made it a crime to divulge classified information to the enemy.[11]

The Declaration of Independence proclaims that governments are instituted to insure equal rights and to protect life, liberty, and the pursuit of happiness.  National security was not stated as an end of government in the Declaration of Independence.  At most, national security was a means to help the government protect life, liberty, and the pursuit of happiness. The American Constitution, drafted some ten years later, is more pragmatic; it substitutes property for the pursuit of happiness and specifically states that the Constitution was established, for among other ends, to insure domestic Tranquility and to provide for the common defense.  The First Amendment to the Constitution protects freedom of speech and of the press, but it is silent about any limitations or whether this freedom includes that person have access to information.

Generally, the common law protects the public’s right to access government records.[12]  However, the common law right extends only to public information and is of little help to those who are seeking access to classified information.  In 1966, Congress passed the Freedom of Information Act (FOIA) to facilitate the public’s access to governmental information.[13]  Congress intended that the Act be broadly construed to effectuate its purpose, but the courts have not been so generous.[14]  The Act contains nine exemptions.[15]  Not surprisingly, the first exemption is documents classified by executive order in the interest of national defense or foreign policy.  When this exception is raised, the courts have been extremely deferential.[16]

Further, the CIA Information Act of 1984[17] exempts operational files of the Central Intelligence Agency from FOIA, but the Act does require the government to produce files on United States citizens and permanent residents who have requested information on themselves or when the files are needed for investigations by Congress or other government agencies into improprieties or violations of law, executive orders, or presidential directives in the conduct of intelligence.  Nonetheless, it has been held that requests for information on CIA rendition of detainees suspected of terrorist links need not be produced in response to a private lawsuit.[18]

While Congress has enacted a Whistleblowers Protection Act[19] and an Intelligence Community Whistleblowers Protection Act[20] that on their face make it difficult for government to retaliate against whistleblowers, judges have been reluctant to apply these statutes broadly.  As shown by the prosecution of Sgt. Chelsea Manning and others by the Obama Administration, these statutes provide little protection for those accused of whistleblowing.  Furthermore, the law is not evenly applied.  It is widely recognized that every administration leaks selective classified information when it determines that it is expedient to do so.  Prominent leakers that have the support of powerful persons in the administration are pardoned as evidenced by the treatment of Gordon Libby during the George W. Bush administration.  Mr. Libby allegedly violated a federal statute that punished the disclosure of the names of CIA agents.[21]

In United States v. Curtiss-Wright,[22] the United States Supreme Court affirmed broad powers of the Executive branch, and stated:

“It is quite apparent that if, in the maintenance of our international relations, embarrassment—perhaps serious embarrassment—is to be avoided and success for our aims achieved, congressional legislation which is to be made effective through negotiation and inquiry within the international field must often accord to the President a degree of discretion and freedom from statutory restriction which would not be admissible were domestic affairs alone involved.  Moreover, he, not Congress, has the better opportunity of knowing the conditions which prevail in foreign countries, and especially is this true in time of war.  He has his confidential sources of information.  He has his agents in the form of diplomatic, consular and other officials.  Secrecy in respect of information gathered by them may be highly necessary, and the premature disclosure of it productive of harmful results.”

Further, in United States v. Nixon,[23] the United States Supreme Court recognized that the President has a constitutionally centered privilege to withhold information.  However, it held that this executive privilege was not absolute and must yield to a valid request by a court when the information is needed by a defendant in a criminal trial.  But the Court specifically stated that the President had not asserted a national security defense against the subpoenas that ordered the President to produce tape recorded conversations he had with his subordinates relevant to the defense.  Once the President asserts a claim of national security, the courts will generally not inquire further.  This was established in United States v. Reynolds,[24] where in a wrongful death suit against a defense contractor, the government refused to produce documents relating to the design of the plane on the ground that the documents would compromise national security.  The judge ordered that the documents be produced for in camera inspection; however, the Supreme Court held that once the government asserts the privilege, courts may not inquire further.  Fear that evidence will compromise national security continues to result in the dismissal of cases,[25] and on occasion the government has dismissed prosecutions because it does not want to disclose classified evidence.[26]

Thus, the courts have proclaimed that judges are not in a position to judge the merits of a national security debate and therefore must defer to Congress or the executive.[27]  While this deference may be questioned, one needs only read the debate among the judges in United States v. Dennis[28]  to sense the complexity of the argument.  Are questions of national security questions of law to be decided by the judge or questions of fact to go to a jury?  On what record is the determination made?  Can the government produce evidence in such a case without itself compromising national security?  And can a defendant accused of breaching national security ever secure an impartial fact finder?  These are only a few of the questions that arise when a national security case is litigated.  Reading court decisions does not inspire confidence, but at least judges are sworn to impartiality and are required to follow established procedures in reaching a decision.  Their decisions and the justification for their decisions are stated publicly for everyone to peruse, at least so long as trials remain open.

The federal government relies very heavily on contract law to prevent leaks of information from federal employees in sensitive positions.  Employees in the CIA and other security agencies sign agreements and take an oath not to divulge information and agree to pre-clear any writings or similar communications with agency personnel.  These agreements impose clear prior restraints on the speech of public employees, but they have generally been upheld by the courts.  In United States v. Marchetti,[29] a federal court of appeals upheld prepublication review and bans on a former CIA employee’s disclosure of classified information.  The United States Supreme Court went further in Snepp v. United States.[30]  The Court imposed a constructive trust on the earnings of a former CIA officer who had published a book without preclearance.  There was no allegation that the book contained any classified information or otherwise jeopardized national security.  Rather his contract said that he would not publish any  information without prepublication clearance.

More recently in Weaver v. U.S. Information Agency,[31]  a federal court of appeals upheld regulations of the State Department, the United States Information Agency, and the Agency for International Development that required employees to submit all speaking, writing, and teaching material on matters of “official concern” to their employers for review prior to publication.   A matter of “official concern” was defined as any matter that “reasonably may be expected to affect the foreign relations of the United States” and was not limited to classified information.  The court found that the requirement did not pose an unreasonable delay or impediment to publication and was necessary to protect the “efficiency of the public service.”  The court stated:

“Finally, there is nothing unreasonable in the application of 628.2 to all agency employees – even ones without direct access to classified information or sensitive foreign policy developments – because of the risk of unintended leakage of classified or other sensitive information.  Indeed the review process may be particularly important in precisely such cases, as unintended recipients of information are especially likely to have no idea that their material may harbor damaging disclosures.  We do not say that the government’s interests absolutely necessitate the precise contours of the review process in the case of each and every employee . . . , but merely that the review scheme restricts no more speech than is ‘reasonably necessary’ to achieve the government’s interests . . . ”  In her dissenting opinion, Judge Wald noted that the government had offered “no more than a few vague statements about speculative damage to the foreign relations of the United States to justify a formidable restriction on its employee’s speech.”[32]

3. The Challenge Posed by Technology

The stakes are higher today than ever, because the internet has posed special challenges.  Matters can be posted on the internet by almost anyone and almost anyone can access the internet, including children.  The internet was initially proclaimed as a free highway for the movement of information; it was proclaimed to be democracy friendly.  Yet in its evolution, it has revolutionized how we gather information and even how we think about information.

Nonetheless, the Court has resisted proposals to change traditional First Amendment analysis to allow greater government regulation of the internet.[33]  The government developed and encouraged the internet; yet, it soon saw that the internet was a threat to government.  The internet facilitated the easy release of information to the entire world and thus could play havoc with our foreign relations and national security concerns.  Consequently, we have the standoff today between those who favor free movement on the highway of information and those who favor restraint and protection for classified information.

The courts have also recognized that new communication methods pose difficult problems and may require different approaches when applying free speech and press analysis. The courts have tolerated almost no restraints on the traditional press – newspapers, journals, magazines and other forms of printed materials.[34] However, citing the shortage of airwaves, the courts have allowed greater restrictions on radio and television.[35]  Because cable television is not restricted by the airwaves, the court has allowed more freedom to cable communicators.[36] The Court has stated that it recognizes that computers can pose serious threats to privacy, but it has cautioned that the Court should proceed slowly in putting limits on new technology so as not to stunt its growth.[37]

This threat is particularly illustrated by the counter arguments to the Snowden disclosures.  The government has argued that Snowden’s downloading of classified information is illegal.  The government is especially concerned because it recognizes that technology today allows for the rapid disclosure of unprecedented amounts of information that can be easily acquired by our enemies and used to our detriment.  On the other hand, Snowden’s primary disclosure was of a government spying on its own citizens and how this eavesdropping was made possible by new technology. [38]

Thus, both arguments hinge on technology.  Snowden’s disclosures have effectively shown that no one’s communications are safe from a government intent on acquiring even the most innocuous information about its citizens. The government is arguing, without concrete evidence, that if government employees can download and communicate vast files of classified information, our national security is in jeopardy.  The debate is an old one, but the context is unprecedented and neither side can claim that it comes to the table without sin.

III.  Where does the Balance Lie? 

The debate is thus set, and there are no easy solutions in sight.  Many argue for more internal controls in the executive.  These controls would be welcome.  But the executive has a direct conflict of interest.  It wants to protect national security, but no president or agency official wants to be politically embarrassed.  Having the executive check on itself does not inspire public confidence.

  1. More legislative oversight would also be welcome, but the legislature is dependent upon the executive for its information.  Also, politics plays an overwhelming role in the way legislatures operate or, at least, are perceived to operate.  Legislation on freedom of information is difficult to draft as demonstrated by existing laws.  These laws are inevitably either overbroad or under-inclusive.
  2. The courts can play a greater role in protecting information.  But most judges are reluctant to challenge the political branches of government when it comes to national security issues.  Fact-finding by the courts in national security cases is often limited.  Existing cases do not inspire much confidence that the courts can or will be major players in this debate.[39]  Nonetheless, advocates of civil liberties should continue to press the courts for more secure recognition of the right to information.
  3. Some critics argue that an independent board should be constituted to oversee classification decisions.  But again, the same problems will plague review by an outside panel.  Nonetheless, outside review has the advantage of forcing agencies to document their decisions, and this is always helpful.  The decisions of the FICA court illustrate that it is hard not to give deference to the government in its national security concerns, but no advocate of civil liberties would seriously argue that the FICA court should be abolished.
  4. Reliance on a contractual analysis to hold government employees responsible should be abandoned.  Public employees should not be required to contract away their First Amendment rights.  If public employees are to be held accountable, it should be because they have violated clear statutory or regulatory standards, not because they violated their contract of employment.  Public employees may take an oath, but their oath is to uphold the law.  It is hard to see how the government is injured by disclosures that government officials have violated the law.  Similarly, it is hard to find an injury if the employee has disclosed information that should not have been classified.
  5. Transparency should be the norm with narrow exceptions.  This is required by democratic principles and by the First Amendment.  There are no easy answers to how the balance should be struck between national security concerns and freedom of information.  But more breathing room should be given to democratic principles and the First Amendment, and the burden should be on the government when it classifies and withholds information from the public.  Legislative oversight, internal and external review, and a vigilant judiciary all play a role in policing this balance.

Reliance on leaks and whistleblowers will probably always be with us.  In many cases, leaks are the only way the public is going to find out about a breach of the law.  Whistleblowers thus play a powerful role.  They operate as a check on officials who think they can keep the public in the dark.  What to do with whistleblowers is always a concern. Some employees like Gordon Libby are protected by their superiors.  This raises the implication that their superiors were also involved in the leaks.  Other employees are prosecuted vigorously even if they have disclosed important information related to government wrongdoing.

Many whistleblowers are true heroes.  True whistleblowers act out of an idealism that often is not appreciated.  Theirs is an act of civil disobedience.  Persons who commit civil disobedience expect to be punished.  But often executive officials want to make an example of them to deter other leaks.  Therefore, prosecutors seek excessive penalties, and often courts oblige them as in the case of Sgt. Chelsea Manning.  Maybe a later president will pardon the offender, as President Clinton did with Samuel Loring Morison, the Navy intelligence analyst who passed classified photographs to Jane’s Defense Weekly and was sentenced to an extremely long term in prison for his violation of the Espionage Act, without any proof of any real resulting harm.  A sympathetic president also shielded Gordon Libby, although the public value of his disclosure was less apparent.

We will no doubt always have to rely on whistleblowers to uncover serious government abuses.  We should recognize their value, and reserve serious sanctions only to those who act out of corrupt motives or who purposefully endanger our national security. We must recognize that this is not a conceptually easy area, and we will be required to rely on a combination of measures to ensure that government operates lawfully and effectively.

 


[i] Michael Seng is the co-executive director of The John Marshall Law School Fair Housing Legal Support Center and Fair Housing Legal Clinic. He lectures nationally and publishes extensively on fair housing law. Professor Seng also is the coordinator of The John Marshall Law School’s Czech law program. He travels annually to the Czech Republic to teach and publishes articles, in English and Czech, in Czech law journals.

[1]Stewart, “Or of the Press,” 26 Hastings L.J. 631 (1975).

[2]The Defense Department’s rulings on allowing access of the press to the battlefield have been mixed.  Prior to the Reagan Administration, especially during World War II and the Viet Nam War, the press was given wide access in covering battles.  However, many in the Pentagon blamed the press for the public’s negative reaction to the Vietnam War, and more stringent rules have been adopted that establish pools of reporters and restrict their access to and publication of information from the battlefield.  MacArthur, Second Front: Censorship and Propaganda in the Gulf War (1992).  The Nation v. Dept. of Defense, 762 F. Supp. 1558 (S.D.N.Y. 1991) (challenge to restrictions in the Gulf War); Flynt v. Rumsfeld, 355 F.3d 697 (D.C. Cir. 2004), cert denied, 543 U.S. 925 (2004) (challenge to restrictions in the Afghanistan War and upholding restrictions on their face and as applied).

[3] First Nat. Bank of Boston v. Bellotti, 435 U.S. 765, 797- 802 (1978) (challenge to state law that prohibited business corporations from making contributions to influence referenda on public issues).

[4]Richmond Newspapers v. Virginia, 448 U.S. 555 (1980).

[5] North Jersey Media v. Ashcroft, 308 F.3d 198, cert. denied, 538 U.S. 1056 (2003) (deportation proceedings); Pell v. Procunier, 417 U.S. 817 (1974) (prisons); Houchins v. KQED, 438 U.S. 1 (1978) (county jails).  Reporters have no constitutionally-protected privilege not to disclose their sources.  Branzburg v. Hayes, 408 U.S. 665 (1972).  Likewise, newsrooms enjoy no special protection against searches and seizures under the Fourth Amendment.  Zurcher v. Stanford Daily, 436 U.S. 547 (1978).

[6]Grosjean v. Am. Press Co., 297 U.S. 233, 250 (1936) (invalidating a state license tax on newspapers).

[7]New York Times Co. v. Sullivan, 376 U.S. 254 (1964) (holding that a newspaper cannot be punished for defamation published without actual malice).

[8] Va. Bd. of Pharmacy v. Virginia Citizens Consumer Council, 425 U.S. 753 (1972) (commercial speech).

[9]Houchins v. KQED, Inc., 438 U.S. 1 (1978) (upholding a restriction on the press from taking photographs in a county jail).

[10] New York Times Co. v. United States, 403 U.S. 713 (1971) (per curiam). As the aftermath of the Pentagon Papers Case illustrated, it would have been very difficult for the government to undertake the prosecution of some of the most powerful newspapers in the United States.  However, the political outrage might not have been so great if the newspaper had been small, politically powerless, or unpopular entities.  And as we are now experiencing, the government is prosecuting at least some leakers.

[11]18 U.S. C. §§ 792-794. That law is still on the books and has been used to prosecute both government and non-government employees who divulge classified national security information even when there is no war.  U.S. v. Morison, 604 F. Supp. 655 (D. Md. 1985) (prosecution of government employee for disclosing national defense information to Jane’s Defence Weekly Magazine in Britain.  He was later pardoned by President Clinton); U.S. v. Rosen, 445 F.Supp.2d 602 (2006) (prosecution of non-government employees who were employed by an organization that did lobbying in the United States for “picking up” secret intelligence on terrorist activities and transmitting it to foreign officials.  The court rejected the argument that the statute as applied to them violated the First Amendment).

[12]Schwartz v. Dept. of Justice, 435 F.Supp. 1203, aff’d, 595 F2d 888 (D.C. Cir. 1979) (Congressional records); Nixon v. Warner Communications, 435 U.S. 589 (1978) (court records).

[13] 5 U.S.C. § 552.

[14] E.P.A. v. Ming, 410 U.S. 73 (1973).  However, in a recent decision of the United States Supreme Court, the Court stated that courts should not create exceptions that are not justified by the words of the statute.  Milner v. Dept. of Navy, 131 S.Ct. 1259 (2011).  The government had specifically not asserted the national security exception.

[15]5 U.S.C. § 552 (b).

[16]Center for National Security Studies v. Dept. of Justice, 331 F.3d 918 (D.C. 2003) (rejecting request of public interest groups for information about post-September 11 detainees).

[17]50 U.S.C. § 431-32.

[18] ACLU v. Dept. of Defense, 628 F.3d 612 (D.C. Cir. 2011).

[19] Whistleblowers Protection Act of 1989, as amended, 5 U.S.C. §2302(b)(8) and (9).

[20] Intelligence Community Whistleblowers Protection Act of 1998, 5 U.S.C. App. §8h.

[21] 50 U.S.C. §§421-426.

[22] 299 U.S. 304, 320 (1936).

[23] 418 U.S. 683 (1974).

[24] 345 U.S. 1 (1953).  Years later after the documents had been declassified, Reynolds daughter requested the documents and discovered that they contained no information that compromised  national security.  The government had resisted producing them simply to escape liability and to avoid embarrassment.

[25] El-Masri v. United States, 479 F.3d 296 (4th Cir. 2007) (Court dismissed civil action against the director of the CIA and others.  The plaintiff claimed that he had been detained and interrogated in violation of the Constitution and international law.  The Court held that the action posed an unreasonable risk that state secrets would be disclosed.)  The precedents go back to the Nineteenth Century when a suit by a civil war spy for compensation was dismissed because it would involve the release of classified information.  Totten v. United States, 92 U.S. 105 (1876).

[26] See United States v. Rosen, 487 F. Supp. 703 (E.D.Va. 2007) (Court denied government’s motion to utilize a trial procedure whereby substantial quantities of classified information would be disclosed to the Court, the jury and counsel, but withheld from the public); United States v. Moussaoui, 365 F.3d 292, amended, 382 F.3d 453, cert. denied, 544 U.S. 931 (2005) (court denied government’s proposal to substitute a material witness who might support the defendant’s claims).

[27] Holder v. Humanitarian Law Project, 130 S.Ct. 2705, 2727-28 (2010).

[28] 341 U.S. 494 (1951) (prosecution of Communist Party members for conspiracy to overthrow the government of the United States).

[29] 466 F.2d 1309, cert. denied, 409 U.S. 1063 (1972).

[30] 444 U.S. 507 (1980).

[31] 87 F.2d 1429, 1443 (D.C. Cir. 1996).

[32] 87 F.3d at 1444.

[33] Reno v. American Civil Liberties Union, 521 U.S. 844 (1997) (holding that Congress’s regulation of the transmission of indecent speech over the internet was overbroad); Ashcroft v. the Free Speech Coalition, 535 U.S. 234 (2002) (invalidating the Child Pornography Act of 1996 that prohibited sexually explicit images that did not use real children).

[34] Miami Herald v. Tornillo, 418 U.S. 241 (1974) (newspapers).

[35] Red Lion Broadcasting v. FCC, 395 U.S., 367 (1969) (upholding the Federal Communication Commission’s fairness doctrine in broadcasting); FCC v. Pacifica Foundation, 428 U.S. 726 (1978) (upholding restrictions on radio broadcasts that can be heard by minors).

[36] Turner Broadcasting v. FCC, 512 U.S. 622 (1994).

[37] Whalen v. Roe, 429 U.S. 589 (1977) (upholding a New York law that allowed the state to collect computer data on users of prescription drugs because it contained sufficient protections against unwarranted disclosure).

[38] Changes in technology were duly noted by Judge Richard Leon in the first case that arose to challenge the wholesale government intelligence-gathering disclosed by Snowden.  Judge Leon contrasted “the Government’s ability to collect, store, and analyze phone data” now in comparison to 1979, when the Supreme Court approved the government’s use of simple pen registers without obtaining a search warrant.  Judge Leon recognized the extent of modern surveillance schemes, the “almost-Orwellian technology” that exists today, and the different nature and quantity of information contained in people’s telephony metadata as compared to thirty years ago.  Kayman v. Obama, 2013 WL 6571796 (D.D.C.  Dec. 16, 2013).

[39] It is refreshing to read Judge Leon’s opinion in Klayman v. Obama, 2013 WL 6571596 (D.D.C. December 16, 2013).  Judge Leon looks with skepticism on the government’s defense of its wholesale surveillance of the phone record metadata of all U.S. citizens disclosed by whistleblower Edward Snowden:

The Government asserts that the Bulk Telephony Metadata Program serves the “programmatic purpose” of “identifying unknown terrorist operatives and preventing terrorist attacks.”  Govt.’s Opp’n at 51 – an interest that everyone, including this Court, agrees is “of the highest order of magnitude,” . . . . A closer examination of the record, however, reveals that the Government’s interest is a bit more nuanced – it is not merely to investigate potential terrorists, but rather, to do so faster than other investigative methods might allow. . . .

Yet, turning to the efficacy prong the Government does not cite a single instance in which analysis of the NSA’s bulk metadata collection actually topped an imminent attack, or otherwise aided the Government in achieving any objective that was time-sensitive in nature.

 

 

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