Cindy Cohn, like President Obama, is particularly interested in Constitutional law. How, then, do they come to such different conclusions about digital surveillance? Jennifer Granick's upcoming book, American Spies, explains how the surveillance state began, and how it keeps growing and growing, despite those who question the legality and the utility of collecting so much information on so many. More data can look like more knowledge and more control, and it's difficult to know when you've reached the point of diminishing returns. Data storage is increasingly free, and processing is increasingly fast, so the need to reign in surveillance and data collection is increasingly falling at the feet of lawyers who struggle to obtain access to documents that depict the scope of ongoing surveillance programs.
I suspect that the principle of journalistic privilege (for one, the right to keep a source confidential) seems academic to many, something learned about in AP US History but rarely considered or practiced. Few of us have been in the position of having something important to tell a reporter for which we could face reciminations. Or, it may seem more honest or more brave to reveal your identity when you intend to expose wrongdoing, as Edward Snowden did. But the ability of journalists to use confidential sources is becoming more and more difficult as our digital trails are easier to follow. Your phone may be tracking your every move, and your emails may be easily accessible; that's why tools like SecureDrop are so important to modern journalists, and the Freedom of the Press Foundation is right to support them, as explained in this episode. Snowden almost didn't get in touch with Glenn Greenwald, because Greenwald found it difficult to set up email encryption; in Greenwald's defense, Snowden's explanation took 12 minutes and requires multiple programs.
Leakers drew ire this election season for their intense focus on some individuals but not others--did we need to known John Podesta's risotto recipe, while not hearing about the Russian friendships of those on Trump's side?--and we will have to decide as a digital society what our attitude is to troves of leaked documents. They could become more commonplace, and we could come to learn that leaked emails aren't necessarily scandalous or interesting emails. Or, we could take a strong stance against leakers, and consider viewing the leaked documents as a transgression similar to receiving stolen property, thereby undercutting their journalistic value. The deciding voices in this debate may be journalists themselves. While it shouldn't be difficult to leak information to journalists, they should bear the editorial responsibility of deciding what is worth publishing and what rights a third party has to privacy, whether that third party is the NSA, John Podesta, or a small business. The most important criterion shouldn't be salaciousness, but rather the importance of the revealed information to the protection of our rights.
Protect civil liberties not by keeping quiet, but by encrypting when you leak? There could be a slogan in there somewhere...
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