Edward Snowden’s leak about NSA data collection has raised a question for Americans to consider: “In a technological world how do we defend our right to privacy?” But Sarah Ellison’s article, “The Man Who Kept The Secret,” raises a more pertinent one. “Are we fools to expect privacy in a technological world?” (Vanity Fair, pgs. 106-113.)
The second question arises from Ellison’s article about James Risen, a New York Times reporter who refused to turn over his notes to the government for a book he’d written, State of War. In question was whether or not Risen had benefited from a leak within the CIA. Risen refused to provide information about his source, citing a minority opinion by Supreme Court Justice Lewis F. Powell Jr. in which he wrote that evidentiary privilege exists between reporters and their sources, just as it does for spouses and for doctors and lawyers with their clients. (Ibid pg. 112) Unfortunately, 5 of the 9 Justices disagreed with his opinion in a ruling which said the First Amendment did not shield reporters “from testifying under grand-jury subpoenas about their sources…” (Ibid pg. 112)
What the government cited as the bases for its action against Risen was the 1917 Espionage Act. The Act was seldom used by previous administrations, but during the current one, it has been employed to prosecute “six current and former government employees and two government contractors…” (Ibid. pg. 109)
Despite its success as tool for obtaining private information, the government has been using the Espionage Act less and less and the number of subpoenas coming out of the Attorney General’s office is in decline. Ellison attributes this change to the growing sophistication of the digital age. In today’s world, a reporter is likely to record his or her notes electronically, which makes those notes are easier to retrieve with or without the author’s knowledge. (Ibid pg. 113)
This new snooping capability poses a threat to the press’s ability to protect its sources and that, in turn, makes investigations of government wrong-doing difficult. When our leaders are set free from the cumbersome obligation of following due process, citizens are obliged to consider the effect upon our democracy.
In his time, Thomas Jefferson wrote much about the importance of the press and its obligation to defend the people against a despotic government. Unfortunately, today’s technology makes it possible for our leaders to ignore due process and to weaken the Fourth Estate, as a consequence. What, I wonder, would be the advice of our 3rd President today.
Curtesy of www.nhtsa.gov
