Submitted by Gene Howington, Guest Blogger

Freedom of speech is a well established right in this country and rooted in the 1st Amendment.  “Congress shall make no law [. . .] abridging the freedom of speech, or of the press”.  The U.N.’s  Universal Declaration of Human Rights Article 19 reads, “Everyone has the right to freedom of opinion and expression; this right includes freedom to hold opinions without interference and to seek, receive and impart information and ideas through any media and regardless of frontiers.”  Within the United States and our jurisprudence there are some exceptions to this freedom, but by in large (up to this point in history) the restrictions are both reasonable and necessary: the Miller test for obscenity, child pornography laws, laws prohibiting speech that incites imminent lawless action, restrictions on fighting words, regulation of commercial speech such as advertising, copyright and patent laws protecting authors and inventors control over their work, and the prohibition of slander and defamation.

Let’s be clear here that the subject isn’t just free speech, but anonymous political free speech.

Here at Res Ipsa Loqitur, there is a long standing policy of allowing anonymous posting to comments and protecting poster’s anonymity.   The decision to post under your own name or not is entirely yours.  This policy encourages free speech while allowing that having an unpopular or minority point of view should not have negative political consequences for the speaker or unnecessarily complicate their lives simply for expressing their views.  Many political insiders and Washington professionals have told Professor Turley that they enjoy reading this blog and have enjoyed posting anonymously.  The only posters here required to use their real identities are the guest bloggers and the requirement is voluntary.  None of us were coerced into using our real names.  When offered the honor of being a guest blogger, it was simply (and I think I speak for all the guest bloggers when I say fairly) a requirement in assuming editorial responsibilities.  However, all of this raises an important question.

Do you have a right to anonymous political free speech?

According to the Supreme Court, you do.  According to the Department of Homeland Security, you don’t.  They’ve hired General Dynamics to track U.S. citizens exercising this critical civil right.

The history of anonymous political free speech in America dates back to our founding.  The seminal essays found in “The Federalist Papers” were written by Alexander Hamilton, James Madison and John Jay under the nom de plume of “Publius” although this was not confirmed until a list of authorship complied by Hamilton was posthumously released to the public.  As previously discussed on this blog, the right to anonymous political free speech has been addressed by the Supreme Court.  Most notably in the cases of Talley v. California, 362 U.S. 60 (1960) and McIntyre v. Ohio Elections Commission, 514 U.S. 334 (1995).  In Talley, Justice Hugo Black writing for the majority said that, “Anonymous pamphlets, leaflets, brochures and even books have played an important role in the progress of mankind. Persecuted groups and sects from time to time throughout history have been able to criticize oppressive practices and laws either anonymously or not at all.”  In McIntyre, Justice John Paul Stevens writing for the majority said that, “Anonymity is a shield from the tyranny of the majority. [… ] an author’s decision to remain anonymous, like other decisions concerning omissions or additions to the content of a publication, is an aspect of the freedom of speech protected by the First Amendment.”  That seems clear enough in defining that citizens do have a Constitutionally protected right to anonymous political free speech.

The full DHS policy statement regarding its activities can be viewed in the DHS Privacy Compliance Review of the NOC Media Monitoring Initiative (November 15, 2011), but rt.com’s summary spells out the basics:

“Under the National Operations Center (NOC)’s Media Monitoring Initiative that came out of DHS headquarters in November, Washington has the written permission to retain data on users of social media and online networking platforms.

Specifically, the DHS announced the NCO and its Office of Operations Coordination and Planning (OPS) can collect personal information from news anchors, journalists, reporters or anyone who may use “traditional and/or social media in real time to keep their audience situationally aware and informed.”

According to the Department of Homeland Security’s own definition of personal identifiable information, or PII, such data could consist of any intellect “that permits the identity of an individual to be directly or indirectly inferred, including any information which is linked or linkable to that individual.” Previously established guidelines within the administration say that data could only be collected under authorization set forth by written code, but the new provisions in the NOC’s write-up means that any reporter, whether someone along the lines of Walter Cronkite or a budding blogger, can be victimized by the agency.

Also included in the roster of those subjected to the spying are government officials, domestic or not, who make public statements, private sector employees that do the same and “persons known to have been involved in major crimes of Homeland Security interest,” which to itself opens up the possibilities even wider.

The department says that they will only scour publically-made info available while retaining data, but it doesn’t help but raise suspicion as to why the government is going out of their way to spend time, money and resources on watching over those that helped bring news to the masses.” – rt.com

This question about the right to anonymous political free speech is also asked over the background of the Electronic Privacy Information Center filing a FOIA request against the DHS to find out the details of the agency’s social network monitoring program.  On April 12, 2011, EPIC submitted a FOIA request to the DHS regarding agency records detailing the media monitoring program and seeking the following documents:

• “All contracts, proposals, and communications between the federal government and third parties, including, but not limited to, H.B. Gary Federal, Palantir Technologies, and/or Berico Technologies, and/or parent or subsidiary companies, that include provisions concerning the capability of social media monitoring technology to capture, store, aggregate, analyze, and/or match personally-identifiable information.
• All contracts, proposals, and communications between DHS and any states, localities, tribes, territories, and foreign governments, and/or their agencies or subsidiaries, and/or any corporate entities, including but not limited to H.B. Gary Federal, Palantir Technologies, and/or Berico Technologies, regarding the implementation of any social media monitoring initiative.
• All documents used by DHS for internal training of staff and personnel regarding social media monitoring, including any correspondence and communications between DHS, internal staff and personnel, and/or privacy officers, regarding the receipt, use, and/or implementation of training and evaluation documents.
• All documents detailing the technical specifications of social media monitoring software and analytic tools, including any security measures to protect records of collected information and analysis.
• All documents concerning data breaches of records generated by social media monitoring technology.”

EPIC asked the DHS to expedite the processing of its request, citing extraordinary public interest in the plan and the public’s right to comment on the measures.  The DHS response can best be categorized as stonewalling.  The DHS acknowledged receipt of EPIC’s FOIA request on April 28, 2011, but denied the request for expedited processing.  At that time, the DHS did not disclose any records in response to the FOIA request. On May 18, 2011, EPIC appealed the DHS’s failure to make a timely substantive determination and the agency’s denial of EPIC’s expedited processing request. The DHS did not respond to EPIC’s administrative appeal and again did not disclose any records.  Left with no other recourse, EPIC filed a lawsuit against the DHS  on December 20, 2011 to compel the disclosure of documents relating to the agency’s media monitoring program.  In response to EPIC’s FOIA lawsuit, the DHS disclosed 285 pages of agency records earlier this month (January, 2012).

As part of recent disclosures related to the EPIC suit, it is revealed that the DHS has hired and instructed General Dynamics to monitor political dissent and the dissenters.  The range of websites listed as being monitored is quite impressive.  Notably, jonathanturley.org is not on this list, but equally of note is that this list is by the DHS’ own admission “representative” and not “comprehensive”.

“8. Appendices

8.1 Social Media Web Sites Monitored by the NOC’s MMC-SN Desk
This is a representative list of sites that the NOC’s MMC-SN Desk will start to monitor in order to provide situational awareness and establish a common operating picture under this Initiative. Initial sites listed may link to other sites not listed. The NOC’s MMC-SN Desk may also monitor those sites if they are within the scope of this Initiative.

This list is based on Appendix A of the ‘Publicly Available Social Media Monitoring and Situational Awareness Initiative” PIA, dated June 22, 2010.'” DHS Response to EPIC FOIA Request, p. 191.

The representative list can be found on page 191-194 of the DHS Response to EPIC FOIA Request.  Notably, jonathanturley.org is not on this list, but equally of note is that other WordPress blogs are on the list.  Some of the more high profile and highly trafficked sites being monitored include the comments sections of The New York Times, The Los Angeles Times, Newsweek, the Huffington Post, the Drudge Report, Wired, and ABC News.  In addition, social networking sites Facebook, MySpace and Twitter are being monitored.  For the first time, the public not only has an idea who the DHS is pursuing with their surveillance and where, but what they are looking for as well.  General Dynamics contract requires them to “[identify] media reports that reflect adversely on the U.S. Government, DHS, or prevent, protect, respond government activities.”  The DHS also instructed General Dynamics to generate “reports on DHS, Components, and other Federal Agencies: positive and negative reports on FEMA, CIA, CBP, ICE, etc. as well as organizations outside the DHS.”  In other words, the DHS wants to know who you are if you say anything critical about the government.

Anybody thinking of the name “Goebbels” at this point is not out of line.  It is a sad commentary on the degradation of civil rights in this country since 9/11 that a blog better protects your right to anonymous political free speech than the government.  Conversely, it speaks volumes about Professor Turley’s commitment to the Constitution and the wisdom of this blog’s anonymity policy.

Is the DHS overstepping in adopting a policy that is counter to the jurisprudence surrounding anonymous free speech?

Is the DHS tracking of bloggers and journalists – the gathering of such information obviously being used for investigative and possibly prosecutorial actions –  going to have a chilling effect on political free speech?

Is this yet another argument for repealing the Patriot Act and dismantling the Department of Homeland Security for blatant abuses of civil rights?

What do you think?

Source(s): DailyKos, rt.com, U.S. Constitution, U.N. Universal Declaration of Human Rights, DHS Privacy Compliance Review of the NOC Media Monitoring Initiative (November 15, 2011) (.pdf),  EPIC.org, DHS Response to EPIC FOIA Request (.pdf)

Kudos: Otteray Scribe for pointing out the DailyKos article.

~ Submitted by Gene Howington, Guest Blogger