(Wired) 2006 will be remembered as the year in which our government imprisoned journalists, embraced kidnap and torture as a “no-brainer,” and moved toward implementing an infrastructure for total surveillance of American citizens. Hopefully, it also will be remembered as the year we started to bring these practices to a halt. In this column, I look back on three civil liberties crises that reached a critical point in 2006. In my next column, my first for 2007, I’ll take a more proactive view of what the new year could mean for civil liberty.
Legal attacks on journalists
This year the U.S. State Department launched the Global Internet Freedom Task Force to challenge other governments that repress online journalism. Perhaps it should start at home.
This year, reporters from the The New York Times and Time magazine faced imprisonment for refusing to say who leaked information about the identity of undercover CIA agent Valerie Plame. Today, two San Francisco Chronicle reporters are facing jail time for refusing to reveal who gave them grand jury transcripts detailing the steroids charges against Barry Bonds and other professional athletes.
This is a disturbing erosion of press freedom. Historically, courts have punished people who illegally leak information, but have generally kept their hands off the journalists who spoke with those people and published the information. The source privilege is a bedrock of a free press, which is to say, a press that doesn’t have to follow the official line.
Many states have shield laws that explicitly protect reporters from being forced to disclose the identity of their confidential sources. But the federal government does not, which makes the state laws easily bypassed. In the case of blogger and videographer Josh Wolf, the FBI was able to skirt California’s shield law by commencing a federal investigation of the case.
In the most recent battle, the Department of Justice is subpoenaing the ACLU to force the group to return a leaked confidential document. The effort threatens to subvert free speech protections established in the Pentagon Papers case, which held that the government could stop journalists from publishing classified information only in the most dire of circumstances.
This year, we’ve also seen companies and law enforcement go directly to the ISP or telephone company for information about sources, rather than subpoenaing the journalist, and giving him or her a chance to raise a legal defense and protect his source.
Apple Computer subpoenaed a blogger’s e-mail provider in an effort to identify someone who leaked new product information. The San Francisco police department collected phone record information from the press room at the Hall of Justice to find out which police officer leaked information showing that a wayward cop involved in beating a civilian had a long history of disciplinary problems.
Changing law enforcement attitudes aren’t the only threat to the freedom of the press; technology is too.
Condoning torture More information is coming out about the government’s “extraordinary rendition” program, an admitted effort to kidnap alleged terrorist operatives and take them to countries without safeguards against torture for “interrogation”.
The Bush administration has defended the practice, and while it denies that the extra-territorial interrogations amount to torture, no one doubts that the techniques approved by the administration would be illegal here in the United States. Indeed, vice president Dick Cheney has called the use of torture a “no-brainer.”
To escape responsibility for torture, officials are hiding behind the “state secrets doctrine,” and strenuously seeking to avoid all public oversight, judicial review or liability for its actions. Even when they torture the wrong guy.
For example, German citizen Khaled El Masri was kidnapped by the CIA in 2003, transported to Afghanistan and tortured — before the CIA realized it had arrested the wrong person, and, fortunately, released him.
El-Masri’s lawsuit against the CIA was dismissed on state secrets grounds, but is now on appeal. Since the trial court dismissed the case, there is more public information available about extraordinary rendition, including Cheney’s extraordinary admission and more legal decisions on the books rejecting state secrets protection for official law-breaking. El Masri’s appeal may be granted.
Litigants and investigators can go directly to phone companies, banks, websites, ISPs and employers for personal information on nearly anyone they want. In January, AmericaBlog showed it could purchase Gen. Wesley Clark’s phone records online for $89.95. Then Hewlett-Packard’s investigation of leaks from its board shined a light on pretexting, a controversial way to get information from phone companies and the like by pretending to be the subscriber.
Congress just passed a statute outlawing pretexting against phone companies, but nobody else.
Meanwhile, the government collects communications data directly from the telephone companies. Documents provided to the Electronic Frontier Foundation, as well as news organizations including Wired News, appear to show a domestic spying program that dragnets all U.S. communications, regardless of source or destination, for National Security Agency review without legal process.
Combine that data with voting records, criminal histories, credit records, utility usage, library records, internet search histories, closed circuit TV cameras, facial recognition, RFID tags, and we’ve got a robust surveillance infrastructure.
Maybe the government doesn’t care about you at the moment — but someone always cares, whether advertisers, identity thieves, employers, lovers or friends. Everyone has private matters they want, and are entitled to keep, secret. In the past, much of our privacy sprang from the simple fact that data was not readily collected or searched. Now that we live in an information society, we need legal barriers to surveillance.
What remains to be seen, in 2007 and beyond, is whether we’ll choose to implement new laws to regain the zone of privacy we used to be able to take for granted, or not.
Overall, 2006 was not particularly better, nor particularly worse, for civil liberties than other recent years. Many important issues however, from freedom of the press, to the rights of individuals to be free from torture, unreasonable surveillance and invasions of privacy, have moved closer to resolution.
Next year will determine whether we continue down a path of increased government power with decreased oversight and transparency, or whether we’re able to harness the power of technology and government in a constructive, democratically responsive way.