Posts about secrecy

Oversight by conscience

Here’s a post I wrote for the Guardian this week….

Official means of oversight of American and British spying have failed. So we are left with the protection of last resort: the conscience of the individual who will resist abuse of power or expose it once it is done.

At the Guardian Activate conference in New York last Wednesday, I moderated a heated panel discussion about the NSA affair with former U.S. Senator Bob Kerrey, a member of the 9/11 Commission; Prof. Yochai Benkler, codirector of the Berkman Center for Internet & Society at Harvard; and journalist Rebecca MacKinnon, a New America fellow.

Screenshot 2013-11-24 at 8.01.05 AM

“We do not have appropriate mechanisms to hold abuse accountable,” MacKinnon said, and to more or lesser degrees, the panelists agreed that oversight is at least too weak. Said Benkler: “The existing systems of oversight and accountability failed repeatedly and predictably in ways that were comprehensible to people inside the system but against which they found themselves unable to resist because of the concerns about terrorism and national security.” Kerrey: “I don’t think we’re even close to having unaccountable surveillance [but] I don’t think it’s good oversight.” I’ll count that as consensus. We then checked off the means of oversight.

* Executive-branch oversight is by all appearances nonexistent.

* Congressional oversight didn’t exist before Watergate, Kerrey said, and when it was established it was made intentionally weak. It should be conducted, he said, “under a constant, militant sense of skepticism.” The clearest evidence that the authority that exists is not being used, he said, is that in the Snowden affair, not a single subpoena has been issued from either the House or Senate select committees.

* The secret FISA courts have proven to be rubber stamps using invisible ink — their justices sometimes concerned or reluctant, Benkler said. But they have been largely ineffectual in any case.

* Journalistic oversight is the next resort. But as MacKinnon stressed, the work of the journalist investigating spying is threatened by the spies themselves as they collect metadata on any call and message and reconstitute raw internet traffic so that no reporters and no sources can be certain they are not being watched unless they find woods to walk in.

So we are left with the whistleblower. “What the whistleblower does is bring an individual conscience to break through all of these systems,” Benkler argued. “It can’t be relied upon as a systematic, everyday thing. It has very narrow and even random insights into the system. But it can be relied upon occasionally to break through these layers of helplessness within the system.”

But this oversight, too, is jeopardized by the severe penalties suffered by Chelsea Manning and the label of traitor pasted on Edward Snowden.

“There’s no question Snowden violated U.S. law,” Kerrey declared in our panel, “and there has to be consequences to that.”

Benkler disagreed, arguing the case for amnesty. “There is a law but the law is always affected by politics and judgment,” he said. “Clearly when someone opens up to the public a matter that is of such enormous public concern that it leads to such broad acceptance of the need for change and for reform, that person ought not come under the thumb of criminal prosecution.”

There we tried to find the line that enables acts of conscience and civil disobedience to keep watch on the powerful. Benkler imagined “a core principle that when a whistleblower discloses facts that actually lead to significant public debate and change in policy — that is to say a public rejection whether through judicial action or legislative action; a reversal — that is the core or heart of what needs to be protected in whistleblowing.”

Kerrey again disagreed, drawing a parallel between Edward Snowden and Klaus Fuchs, who handed secrets on the atomic bomb to the Soviets, Kerrey contended, also out of conscience. Benkler in turn drew a line between revealing information to the public, serving democracy, and revealing secrets to an enemy. Kerrey responded that Fuchs, like Snowden, caused public debate. Benkler thought the rule could be written; Kerrey did not. You can see that we failed to find the line.

But I want to take this discussion beyond whistleblowing — beyond the past tense — the the present tense of objecting to the work one is required to do before it is done. “At what point does conscience require a person to refuse to act in a certain way that they consider completely acceptable in the system they’re in but they find completely unacceptable to their conscience?” Benkler asked.

Kerrey countered: “I don’t think every time you get a team of people working on the danger [to national security], one person can say, ‘Oh, I don’t like what we’re doing,’ and as an act of conscience blow everything we’re doing and say we’re not going to be prosecuted.”

But we must find the room for conscience to act as the check on power without facing 35 years in prison or life in exile or irreversible jeopardy to our security. We must be able to expect the honest technologist working in the bowels of Google or telecom provider Level 3 or the NSA or GCHQ to define a line and refuse to cross it. Can we expect that?

In recent testimony before Congress, Gen. Keith Alexander said the NSA is the nation’s largest employer of mathematicians — or to be exact, 1,103 mathematicians, 966 PhDs, and 4,374 computer scientists.

Where is the code of ethics that governs their work in breaking into our communication or breaking the encryption we use to protect it? Where is the line they will not cross? Doctors have their codes. Even we journalists have ours (and though some apparently never imagined a clause relating to phone hacking, others found it for them).

We have heard two Google engineers tell the NSA to fuck off for — according to Snowden’s documents — infiltrating internal traffic between servers at Google and Yahoo.

Does this challenge to the NSA give us confidence that others at Google will tell the NSA “no”? But who said “yes” to Project MUSCULAR, in what company? Was that company commandeered by the the NSA and employees with security clearance or was the work done willingly? Why didn’t the technologists who spliced that line say “fuck you”, too? Will they be more willing to do that now that this work is known? And what will happen to those who do stop at the line?

On July 17, 1945, 155 scientists working on the Manhattan Project signed a petition to President Harry Truman urging him not to use the bomb on Japan. “Discoveries of which the people of the United States are not aware may affect the welfare of this nation in the near future,” they said.

They were too late.

Here is video of the panel discussion:

The Future of the Internet from The Guardian on FORA.tv

The war on secrecy

Here is a post I wrote for the Guardian:

It has been said that privacy is dead. Not so. It’s secrecy that is dying. Openness will kill it.

American and British spies undermined the secrecy and security of everyone using the internet with their efforts to foil encryption. Then Edward Snowden foiled them by revealing what is perhaps (though we’ll never know) their greatest secret.

When I worried on Twitter that we could not trust encryption now, technologist Lauren Weinstein responded with assurances that it would be difficult to hide back doors in commonly used PGP encryption — because it is open source.

Openness is the more powerful weapon. Openness is the principle that guides Guardian journalism. Openness is all that can restore trust in government and technology companies. And openness — in standards, governance, and ethics — must be the basis of technologists’ efforts to take back the the net.

Secrecy is under dire threat but don’t confuse that with privacy. “All human beings have three lives: public, private, and secret,” Gabriel Garcí­a Márquez tells his biographer. “Secrecy is what is known, but not to everyone. Privacy is what allows us to keep what we know to ourselves,” Jill Lepore explains in The New Yorker. “Privacy is consensual where secrecy is not,” write Carol Warren and Barbara Laslett in the Journal of Social Issues. Think of it this way: Privacy is what we keep to ourselves. Secrecy is what is kept from us. Privacy is a right claimed by citizens. Secrecy is a privilege claimed by government.

It’s often said that the internet is a threat to privacy, but on the whole I argue it is not much more of a threat than a gossipy friend or a nosy neighbor, a slip of the tongue or of the email “send” button. Privacy is certainly put at risk when we can no longer trust that our communication, even encrypted, are safe from government’s spying eyes. But privacy has many protectors. And we all have one sure vault for privacy: our own thoughts. Even if the government were capable of mind-reading, ProPublica argues in an essay explaining its reason to join the Snowden story, the fact of it “would have to be known.”

The agglomeration of data that makes us fear for our privacy is also what makes it possible for one doubting soul, one weak link — one Manning or Snowden — to learn secrets. The speed of data that makes us fret over the the devaluation of facts is also what makes it possible for journalists’ facts to spread before government can stop them. The essence of the Snowden story, then, isn’t government’s threat to privacy so much as government’s loss of secrecy.

Oh, it will take a great deal for government to learn that lesson. Its first response is to try to match a loss of secrecy with greater secrecy, with a war on the agents of openness: whistleblowers and journalists and news organizations. President Obama had the opportunity to meet Snowden’s revelations — redacted responsibly by the Guardian — with embarrassment, apology, and a vow to make good on his promise of transparency. He failed.

But the agents of openness will continue to wage their war on secrecy.

In a powerful charge to fellow engineers, security expert Bruce Schneier urged them to fix the net that “some of us have helped to subvert.” Individuals must make a moral choice, whether they will side with secrecy or openness.

So must their companies. Google and Microsoft are suing government to be released from their secret restrictions but there is still more they can say. I would like Google to explain what British agents could mean when they talk of “new access opportunities being developed” at the company. Google’s response — “we have no evidence of any such thing ever occurring” — would be more reassuring if it were more specific.

This latest story demonstrates that the Guardian — now in league with The New York Times and ProPublica as well as publications in Germany and Brazil — will continue to report openly in spite of government acts of intimidation.

I am disappointed that more news organizations, especially in London, are not helping support the work of openness by adding reporting of their own and editorializing against government overreach. I am also saddened that my American colleagues in news industry organizations as well as journalism education groups are not protesting loudly.

But even without them, what this story teaches is that it takes only one technologist, one reporter, one news organization to defeat secrecy. At the length openness will out.

What are you thinking, Mr. President?

I wrote this for the Guardian, where the discussion is quite lively, approaching 1,500 comments. I’m posting it here a few days later for the purposes of my own archive.

What are you thinking, Mr. President?

Is this really the legacy you want for yourself: the chief executive who trampled rights, destroyed privacy, heightened secrecy, ruined trust, and worst of all did not defend but instead detoured around so many of the fundamental principles on which this country is founded?

And I voted for you. I’ll confess you were a second choice. I supported Hillary Clinton first. I said at the time that your rhetoric about change was empty and that I feared you would be another Jimmy Carter: aggressively ineffectual.

Never did I imagine that you would instead become another Richard Nixon: imperial, secretive, vindictive, untrustworthy, inexplicable.

I do care about security. I survived the attack on the World Trade Center and I believe 9/11 was allowed to occur through a failure of intelligence. I thank TSA agents for searching me: applause for security theater. I defend government’s necessary secrets. By the way, I also defend Obamacare. I should be an easy ally. But your exercise of power appalls me. When I wrote about your credibility deficit in the Guardian, I was shocked that among the commenters at that great international voice of liberalism, next to no one defended you. Even on our side of the political divide, I am far from alone in urgently wondering what you are doing.

As a journalist, I am frightened by your vengeful attacks on whistleblowers — Manning, Assange, Snowden, and the rest — and the impact in turn on journalism and its tasks of keeping a watchful eye on you and helping to assure an informed citizenry.

As a citizen, I am disgusted by the systematic evasion of oversight you have supported through the FISA courts; by the use of ports as lawless zones where your agents can harass anyone; by your failure on your promise to close Guantanamo, and this list could go on.

As an American often abroad, I am embarrassed by the damage you have caused to our reputation and to others’ trust in us. I find myself apologizing for what you are doing to citizens of other nations, dismissing the idea that they have rights to privacy because they are “foreign.”

As an internet user, I am most fearful of the impact of your wanton destruction of privacy and the resulting collapse of trust in the net and what that will do to the freedom we have enjoyed in it as well as the business and jobs that are being built atop it.

And as a Democrat, I worry that you are losing us the next election, handing an issue to the Republicans that should have been ours: protecting the rights of citizens against the overreach of the security state.

Surely you can see this. But you keep doubling down, becoming only more dogged in your defense of secrecy and your guardians of it. I don’t understand.

The only way I could possibly grant you the benefit of doubt is to think that there is some ominous fact about our security that only you and your circle know and can’t breath or the jig will be up. But I don’t believe that anymore than I believe a James Bond movie or an Oliver Stone conspiracy theory. You can’t argue that Armageddon is on the way and that al Qaeda is on the run at the same time.

No, I think it is this: Secrecy corrupts. Absolute secrecy corrupts absolutely. You have been seduced by the idea that your authority rests in your secrets and your power to hold them. Every attack on that power, every questioning of it only makes you draw in tighter, receding into your vault with the key you think your office grants you. You are descending into a dark hole of your own digging.

But you know better, don’t you? In a democracy, secrecy is not the foundation of authority; that is the basis of dictatorships. Principles and their defense is what underpins your office.

First among those principles is the defense of our freedom. Security is only a subset of that, for if we are not secure we are not free. Freedom demands the confidence that we are not under attack, yes, but also that we are not being surveilled without our knowledge and consent. The balance, which we are supposedly debating, must go to freedom.

Transparency is another principle you promised to uphold but have trammeled instead. The only way to assure trust in your actions is if they are overseen by open courts, by informed legislators, by an uninhibited press, and most importantly by an informed citizenry.

As political and media attention turn away from you, you have an opportunity to rise again to the level of principles, to prove that your rhetoric about change was not empty after all, to rebuild your already ill-fated legacy, to do what is expected of you and your office.

You could decide to operate on the principle that our privacy is protected in any medium — not just in our first-class letters but in our emails and chats and calls — unless under specific and due warrant.

You could decide to end what will be known as the Obama Collect it All doctrine and make the art of intelligence focus rather than reach.

You could decide to respect the efforts of whistleblowers as courageous practitioners of civil disobedience who are sacrificing much in their efforts to protect lives and democracy. If they are the Martin Luther Kings of our age, then call off Bull Connor‘s digital dogs and fire hoses, will you?

You could decide to impress us with the transparency you still can bring to government, so that the institution you run becomes open by default rather than by force, as it is now, under you.

You could decide to support a free press and stop efforts — here and, using your influence, with our friends in the UK — to restrain their work.

You could decide that whether they are visiting our land or talking with our citizens by email or phone, foreigners are not to be distrusted by default.

You could try to reverse the damage you have done to the internet and its potential by upholding its principles of openness and freedom.

You could. Will you?

Tech companies: Whose side are you on?

I wrote this for the Guardian. I’m crossposting it here for my archive. The post is all the more relevant a day later as Google, Apple, AT&T, and Public Knowledge attend a secret White House meeting about secrecy. I’d have a lot more respect for them if they refused, given the condition.

Technology companies: Now is the moment when you must answer for us, your users, whether you are collaborators in the U.S. government’s efforts to collect it all — our every move on the internet — or whether you, too, are victims of its overreach.

Every company named in Edward Snowden’s revelations has said that it must comply with government demands, including requirements to keep secret court orders secret. True enough. But there’s only so long they can hide behind that cloak before making it clear whether they are resisting government’s demands or aiding in them. And now the time has come to go farther: to use both technology and political capital to actively protect the public’s privacy. Who will do that?

We now know, thanks to Snowden, of at least three tiers of technology companies enmeshed in the NSA’s hoovering of our net activity (we don’t yet know whether the NSA has co-opted companies from the financial, retail, data services, and other industries):

(1) Internet platforms that provide services directly to consumers, allowing government to demand access to signals about us: Google with search, mail, calendars, maps; Facebook with connections; Skype with conversations, and so on.

In its first Prism reporting, the Washington Post apparently unfairly fingered nine of these companies, accusing the NSA and FBI of “tapping directly into the central servers” that hold our “chats, photographs, e-mails, documents, and connection logs.” Quickly, the companies repudiated that claim and sought the right to report at least how many secret demands are made. But there’s more they can and should do.

(2) Communications brands with consumer relationships that hand over metadata and/or open taps on internet traffic for collection by the NSA and Britain’s GCHQ, creating vast databases that can then be searched via XKeyscore. Verizon leads that list, and we now know from the Süddeutsche Zeitung that it also includes BT and Vodafone.

(3) Bandwidth providers that enable the NSA and its international partners to snoop on the net, wholesale. The Süddeutsche lists the three telco brands above in addition to Level 3, Global Crossing, Viatel, and Interroute. Eric King, head of research for Privacy International, asked in the Guardian, “Were the companies strong-armed, or are they voluntary intercept partners?”

The bulk data carriers have no consumer brands or relationships and thus are probably the least likely to feel commercial pressure to protect the rights of the users at the edge. The telephone companies should care more but they operate as oligopolies with monopoly attitudes and rarely exhibit consumer empathy (which is a nice way of saying their business models are built on customer imprisonment).

A hodgepodge alliance of U.S. legislators is finally waking up to the need and opportunity to stand up for citizens’ rights, but they will be slow and, don’t we know, ineffective and often uninformed. The courts will be slower and jealous of their power. Diplomacy’s the slowest route to reform yet, dealing in meaningless symbolism.

So our strongest expectations must turn to the first tier above, the consumer internet platforms. They have the most to lose — in trust and thus value — in taking government’s side against us.

At the Guardian Activate conference in London last month, I asked Vint Cerf, an architect of the net and evangelist for Google, about encrypting our communication as a defense against NSA spying. He suggested that communication should be encrypted into and out of internet companies’ servers (thwarting, or so we’d hope, the eavesdropping on the net’s every bit over telcos’ fibre) but should be decrypted inside the companies’ servers so they could bring us added value based on the content: a boarding pass on our phone, a reminder from our calendar, an alert about a story we’re following (not to mention a targeted ad).

Now there are reports that Google is looking at encrypting at least documents stored in Google Drive. That is wise in any case, as often these can contain users’ sensitive company and personal information. I now think Google et al need to go farther and make encryption an option on any information. I don’t want encryption to be the default because, in truth, most of my digital life is banal and I’d like to keep getting those handy calendar reminders. But technology companies need to put the option and power of data security directly into users’ hands.

That also means that the technology companies have to reach out and work with each other to enable encryption and other protections across their services. I learned the hard way how difficult it is to get simple answers to questions about how to encrypt email. The industry should work hard to make that an option on every popular service.

But let’s be clear that encryption is not the solution, probably only a speed bump to the NSA’s omnivorous ingesting. At the Activate conference, Cerf was asked whether the solution in the end will be technical or institutional. No doubt, institutional, he answered. That means that companies and government agencies must operate under stated principles and clear laws with open oversight.

Before Snowden’s leaks, technology CEOs would have had to balance cooperation and resistance just as the nation supposedly balances security and privacy. But now the tide of public opinion has clearly shifted — at least for now — and so this is the moment to grab control of issue.

If they do not assert that clear control, these technology companies risk losing business not only from skittish consumers but also from corporate and foreign-government clients. The Cloud Security Alliance polled companies and found that 10% had canceled U.S. cloud business and 56% were less likely to do business with U.S. providers. “If businesses or governments think they might be spied on,” said European Commission Vice President Neelie Kroes, “they will have less reason to trust the cloud, and it will be cloud providers who ultimately miss out.”

Besides taking action to secure technology and oversight within their companies and the industry, right-thinking technology companies also need to band together to use their political capital to lobby governments across the world to protect the rights of users and the freedom and sanctity of privacy and speech on the net. They must take bold and open stands.

To do that, they must first decide on the principles they should protect. In my book Public Parts, I proposed some principles to discuss, among them:
* the idea that if any bit on the net is stopped or detoured — or spied upon — then no bit and the net itself cannot be presumed to be free;
* that the net must remain open and distributed, commandeered and corrupted by no government;
* that citizens have a right to speak, assemble, and act online and thus have a right to connect without fear;
* that privacy is an ethic of knowing someone else’s information and coming by it openly;
* and that government must become transparent by default and secret by necessity (there are necessary secrets). Edward Snowden has shown us all too clearly that the opposite is now true.

I also believe that we must see a discussion of principles and ethics from the technologists inside these companies. One reason I have given Google the benefit of the doubt — besides being an admirer — is that I believe the engineers I know inside Google would not stay if they saw it violating their ethics even if under government order.

Yonathan Zunger, the chief architect of Google+, said this after the Guardian’s and Glenn Greenwald’s first revelations were published:

I can tell you that it is a point of pride, both for the company and for many of us, personally, that we stand up to governments that demand people’s information…. I can categorically state that nothing resembling the mass surveillance of individuals by governments within our systems has ever crossed my plate. If it had, even if I couldn’t talk about it, in all likelihood I would no longer be working at Google.

In the end, it’s neither technologies nor institutions that will secure us from the inexorable overreach of government curiosity in the face of technical capability. Responsibility for oversight and correction begins with individuals, whether whistleblowers or renegade politicians or employees of conscience who finally remind those in power: “Don’t be evil.”

What is journalism, redux

The Guardian asked me to respond to the issues raised in Yochai Benkler’s testimony at the trial of Bradley Manning about the definition of journalism. I’m cross-posting it here for archival purposes. To comment, please go to the Guardian.

When Bradley Manning‘s defense attorneys wanted someone to explain journalism (pdf) to the court (pdf) trying him, they did not call on a journalist, they called on a legal scholar and expert in networks: Yochai Benkler, co-director of the Berkman Center for Internet and Society at Harvard and author of The Wealth of Networks.

For as Benkler explained to the court, journalism is now a network – a “network ‘fourth estate'”.

In this network, there are many roles that can be linked together: witnessing, gathering, selecting, authenticating, explaining, distributing. Each can be an act of journalism. Each can be done by someone else, not necessarily working in a single institution. “Journalism,” said Benkler, “is made up of many things.”

Those actors can now include not just the reporters and editors in newspapers, and not just bloggers working alone, but also other, new players: witnesses who share what they see on the streets of Cairo, Rio, or Istanbul; witnesses or whistleblowers who share what they discover in their work (see: Manning or Edward Snowden) and organizations that aid one function or another (see: WikiLeaks). As Benkler went on to testify Wednesday:

One of the things that’s happened is people realize that you can’t have all the smartest people and all the resources working in the same organization. So we have seen a much greater distribution in networks that even though they use the internet, what’s important about the network structure is actually permissions, who’s allowed to work on what resource or assignments of work assignments.

Permission is precisely what is at stake in Manning’s trial and will be if Snowden is brought to court: both men had permission to see what they saw. They did not have permission to share it. Or if they are deemed whistleblowers, do they? Well, that may depend on whom they shared their information with: a journalistic organization, perhaps. But is WikiLeaks such an organization? Or is it a source for “the enemy”?

That is an issue Benkler and attorneys wrestled with, as he argued that WikiLeaks was indeed seen as a journalistic organization – until Manning’s files became public (with the help of the Guardian, the New York Times, Der Spiegel, el Pais and other clearly journalistic enterprises). From then on, Benkler said, WikiLeaks was demonized by American politicians in their “shrill” campaign against it. To use Benkler’s word, WikiLeaks was “delegitimized”. Its permissions were withdrawn.

All this matters to Manning’s defense because it informs the question of intent: did he intend to share the videos and files he found with fellow citizens or with the enemy? Was WikiLeaks a journalistic entity with links to the public or an enemy tool with a line to Bin Laden?

The exact same question is already raised about Snowden: did he intend to share with the public through this newspaper or with other governments in their airports? There lies a line between whistleblower and spy – or so the argument goes.

There’s another issue in play: the one around “a journalist”. Who is a journalist? For that matter, what is journalism? Those questions underpinned not only Benkler’s testimony, but also the debate buzzing around the head of the Guardian’s Glenn Greenwald, as some colleagues in the field have amazingly questioned his role (his permission), and thus whether he should be arrested for aiding and abetting a criminal suspect.

They do that because Greenwald is an advocate and a journalist; while journalists – in the US, at least – have long believed that one must be a journalist or an advocate. Benkler told the court that one can be both. I argue that all journalism is advocacy even if it is simply advocating for openness and transparency, or standing up for the downtrodden, or believing that the public must be better informed.

New York Times public editor Margaret Sullivan tried recently (and for what must be the millionth time) to define a journalist. Senator Dick Durbin has proposed that the government should define who is a journalist.

But that would be tantamount to licensing the journalist. That is a permission government should not grant, for that gives government the power to rescind it.

Here’s the problem – the problem Benkler presents in his testimony: in a network, anyone can perform an act of journalism. Thus, I argue, there are no journalists. There is only the service of journalism.

At the Guardian’s Activate conference in London, this Tuesday, I asked Vint Cerf, a father of the internet, about the notion that journalists still think they manufacture a product called content (a noun) while Cerf’s invention and his current employer, Google, concentrate on making verbs: services that perform a function for people or society. Surely, as I’ve argued on my blog recently, journalism is such a service.

Journalism is not content. It need not be a profession or an industry. It is not the province of a guild. It is not a scarcity to be controlled. It no longer happens just in newsrooms. It is no longer confined to narrative form.

So, then, what the hell is journalism?

It is a service whose end is an informed public. For my entrepreneurial journalism students, I provide a broad umbrella of a definition: journalism helps communities organize their knowledge so they can better organize themselves.

So, anything that reliably serves the end of an informed community is journalism. Anyone can help do that. The true journalist should want anyone to join the task.

That’s not a complicated definition, but it raises no end of complications, especially in a set of laws that is built for institutions, not networks. What if Manning, WikiLeaks, Snowden and Greenwald all performed acts of journalism? I say they have, for they performed services in the name of an informed public. There is a role for the witness, the whistleblower, and the advocate in the “network fourth estate”.

And there must still be a role for journalistic institutions. For it is they that have the resources to perform many of the necessary functions that come after witnessing: selecting, authenticating, explaining, distributing. And it is they and their lawyers who can withstand the pressure that governments will put on them – witness the trial of Manning and the pursuit of Snowden – to forbid transparency.

In his testimony, Benkler warned the court of the precedents that may set:

If the threat to potential whistleblowers and leakers was as great as a death penalty or life in prison, [that would chill] the willingness of people of good conscience but not infinite courage to come forward and … [would] severely undermine the way in which leak-based investigative journalism has worked in the tradition of free press in the United States.

Matters of principle

Prism
America is supposed to be a nation governed by principles, which are undergirded by the Constitution and the Bill of Rights and carried into law. The discussion about the government and its capture of *our* data should be held on the level of principles.

* Privacy: Our direct and personal communication in any medium and by any means — mail, email, phone, VOIP, Twitter DM, and any technology yet to be invented — should be considered private, as our physical mail is, and subject to government intervention only through lawful warrant. That is not the case. Thus it is quite reasonable to be disturbed at the news that government can demand and receive communication we believe to be private. Government may call itself the protector of our privacy but it is our privacy’s worst enemy.

* Transparency: The actions of government should be known to citizens. I argue in Public Parts that our institutions should be public by default, secret by necessity; now they are secret by default and open by force. There are necessary secrets. There is a need for intelligence. There I agree with David Simon. I saw people die before me on 9/11 and I fault intelligence or not stopping it.

But we are left out of the discussion of where the line of necessity should be. If President Obama believes in the transparency he talks about and if he now says he welcomes the debate about security and freedom then it should have occurred *before* government took the actions now being reported and not by force through leaks. There I agree with James Fallows that this leak is not harmful — what bad guys didn’t already realize that their phones could be tracked? — and will be beneficial for democracy.

* Balance of powers: The best protection of our nation’s principles is the balance of powers. Yes, Congress passed the Patriot Act and yes, a FISA court does approve the executive branch’s actions. But both our representatives and our justices are prevented from sharing anything with us, as are the companies that are forced to be their accomplices. The true balance of powers is the exercise of democracy by citizens, but without information we have no power and government has it all.

* Freedom of speech and of the press: Information comes to the public from the press, which is now anyone with information to share. And citizens exercise power through speech. But in its jihad against leaks… that is whistleblowers… that is reporting… that is journalism and the public’s right to know, the White House is chilling both the press and speech. I pray that Glenn Greenwald doesn’t have a Verizon phone.

This discussion is less about privacy and more about transparency and speech. The principles most offended here are those embedded in the First Amendment for those are the principles we rely upon to take part in the debate that is democracy.

I am asking for government to behave according to principles. I am also asking companies to do so. Twitter — whose behavior toward developers and users can sometimes mystify me — is apparently the platform most stalwart in standing for its users’ rights as a matter of principle. They apparently refused to make it easier for government to get data. Now one could argue that helping government thwart terrorists is also behaving according to principle. But again we and these companies aren’t allowed to have that debate. So I’d now advise following what is apparently Twitter’s route in only responding to demands, nothing more. And I’d advise following Google’s example in revealing government demands for information (though under FISA, once again, they’re not allowed to reveal — even by a count — them all).

There is much debate and sometimes conspiracy theorizing swirling around about what Google, Facebook, et al did and didn’t provide to government. I take Larry Page’s and Mark Zuckerberg’s statements at their literal word and agree with Declan McCullagh that I so far see no evidence that these companies handed the keys to their servers to the NSA. We know and they have long said that they comply with government orders, whether in the U.S. or China.

Though some are attacking him on this issue and though I often disagree with him on the state of the news business, I again say that I agree with David Simon on the unsophisticated and emotional interpretation of this news. Since the initial New York Times report on NSA “warrantless wiretapping,” I have understood that one of government’s goals is to use data to find anomalies but to do that it has to have a baseline of normal behavior. We’re the normal. This has been going on for sometime, as Simon says; we just haven’t known how.

Are we as a nation OK with allowing government to make such an analysis to find the terrorists’ anomalous behaviour or not? That’s a discussion that should occur according to principles, properly informed about the risks and benefits. Are we OK with government using that same data to fish for other crimes — like, say, leaking a PowerPoint to the Guardian? I am not. Are we OK with government treating whistleblowers and leakers as traitors — starting with Bradley Manning? I am not. I agree with Bruce Shneier: “We need whistleblowers.” Are we OK with government having access to our private communications without warrants? I say: most definitely not, as a matter of principle.

Under a regime of secrecy, assuming the worst becomes the default in the discussion. We assume the worst of government because they keep from us even activities they say are harmless and beneficial. We see people who want to be suspicious of technology and technology companies assuming the worst of them because, after all, we can’t know precisely what they are doing. I agree with Farhad Manjoo about the danger. People in other nations — I’m looking at you, EU — already distrust both the American government and American technology companies, often in the past for emotional reasons or with anti-American roots but now with more cause. You can bet we’ll hear governments across Europe and elsewhere push harder for legislation now in process to require that their citizens’ data be held outside the U.S. and to European standards because, well, they assume the worst. We’ll hear calls to boycott American-made platforms because — even if they try not to go along — their acquiescence to our government means they cannot be trusted. This is bad for the net and bad for the country. The fault lies with government.

This is a story about transparency and the lack of it. It is a story about secrecy and its damages. It is a story about principles that are being flouted. It should be a discussion about upholding principles.

We are Manning

I have just one problem with David Carr’s good column decrying government opacity in the prosecution and trial of Bradley Manning: He lets us in the press (as well as in the chattering blog class) off easy.

Carr doesn’t mention the wrist-slap given The Times by its own public editor, Margaret Sullivan, for not sending a reporter to the Manning hearings.

He also gives newspapers as a group a too-easy excuse for not covering Manning: “Yet coverage has been limited, partly by the court’s restrictions and partly because an increasingly stretched news media business often does not have the time, or the resources, to cover lengthy trials.”

We aren’t going to use that excuse all the time now, are we? “Oh, we couldn’t cover that story vital to the nation and the fate of a free press because not enough of you are paying or because retail advertisers are dying or because Google took our customers.” Yes, our resources are scarce — always have been — and getting scarcer. But this is still a matter of news judgment. What was covered while Manning wasn’t? I’ll bet we can find stories to have sacrificed.

If we’re going to argue that the public still needs editors and their news judgment, then it’s a tad disingenuous to say that this is a story of vital national interest that the government has been trying to hide from us but we don’t have the time to cover it. Isn’t that precisely the story we should be covering? Isn’t coverage just what is needed to keep a watch on government and its efforts at secrecy?

The Guardian’s Ed Pilkington, whom Carr quotes, has maintained coverage of the Manning story long after the splash of the Wikileaks revelations that both papers carried — thus he helps to secure the Guardian’s role as a truly international news organization. Greg Mitchell has also been diligent in pursuing the story. Beyond that, there has been too little coverage from The Times and other U.S. news organizations.

And there has been too little discussion from bloggers like me, I’ll confess. I care about openness, about journalism, and about over-aggressive prosecutions and legislation that demonize technology. So I should have been talking about Manning more and also about the case of Aaron Swartz. These are stories central to the fate of free speech. In both cases, I fear the attention came too little, too late, which makes it all the more vital that we concentrate on them now, for every reason Carr gives.

The public press: Transparency is our goal

I hold these truths to be self-evident:

1. The goal of the press is transparency. We want to shine sunlight on the powerful in public.

2. The press must be transparent. Not to be transparent is to be hypocritical. Opaqueness is not an act of trust.

3. Public means public. When something happens in the public, whether it is seen and heard by one person or by 100, it can now be seen and heard by the world thanks to any one of those witnesses. That’s what public means.

Isn’t that obvious?

Apparently not, given the arguments over Mayhill Fowler, which Jay Rosen adroitly summarizes and comments on, and other debates about the rules of the press, what they are, and who holds them. I think the argument is getting unnecessarily overcomplicated and muddy. It’s simple, as simple as I put forward above.

Now out of these rules, there are some consequences.

Everyone — including Mayhill Fowler — agrees that transparency of her identity and purpose would have been preferable. No one is arguing with that.

I say the rules mean that editors should be training their staffs to be always open, always transparent — even in cruddy little blog discussions. I’m saddened that some don’t.

These rules mean that anything that happens in public is public. Corollary to that: Anything a politician does should be public.

Public figures, especially politicians, already assume that everything they say can and will be used against them in a court of public opinion. So I have no sympathy for Barack Obama — who knew his “bittergate” session was on the record if closed to press invitations, as Jay points out — and Bill Clinton — who was very much in a public place when he spoke about Todd Purdhum.

So let’s say that Fowler didn’t ask the question at the rope line but overheard it: Should she report what she heard? I say yes. Let’s say she asked the question and didn’t report it but the person next to her did. OK? Still yes. Let’s say that person next to her was not a civilian but was a reporter with credentials around the neck? Would that reporter report what she’d heard? You bet she would. Now let’s say someone else asked the question and shared the answer, someone who had never reported, blogged, or published before but who realized that this was something others would want to know, so she went to a blog or forum and retold the story in the comments. So? So what? It’s all public. It’s all reporting. It’s all news if we think it is.

Now the biggest consequence of these simple rules for the press: We, the press, should be making it our sworn goal to eradicate off-the-record and anonymous sourcing and secret deals. Of course, the problem is that is those special arrangements are what reporters believe give them access to the powerful. And access is what makes them powerful, they think. Access, to paraphrase a few hacks (British usage) in Rosen’s post, is what gets them their good stories. Access is also what makes them special: they have it and you don’t. These are the rules that keep the club a club. These are also the rules that corrupt journalists who traffic in them with those they are supposed to be covering and uncovering.

Of course, off-the-record anonymity and secrecy will linger on, especially in investigative reporting (which, remember, is a tiny percentage of the reporting actually done).

But can’t we at least agree that we don’t like off-the-record deals with anonymous sources to keep secrets? Can’t we agree that that is antithetical to rule No. 1 above, to the mission of the press?

And shouldn’t we be happy, as Jay is in his post, that there is more reporting and more sunshine from more witnesses now empowered? Shouldn’t that added journalism be welcomed by journalists? Of course, it should — unless the journalists want to protect their club, which is no longer a tenable position in the public. And keep in mind that as more and more journalists get laid off and become bloggers, they’ll find themselves on the other side of that rope, off the bus, out of the club. I say that shouldn’t matter. Professionalism and standards don’t come with a paycheck.

I was hoping we were getting past the point where there was a line. I was hoping that we were getting to the point that, as Jay says, we could agree that there are more and new systems of trust — rules and ethics — and that we could be open to learning them. I was hoping.

But I think the discussion has gotten so murky that it is time to bring it back to the basics, the essentials. Let’s sing the chorus:

1. The goal of the press is transparency.

2. The press must be transparent.

3. Public means public.

: LATER: Jay Rosen finds in this post by Jeff Bercovici the poster child of what he calls the guild mentality and what I call the clubbyness of journalism. Felix Salmon disagrees with his Portfolio colleague. So Jay, Felix, and I are the anticlub, the unguild.