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
Bdaman
This author has47 siblings
I only have 2 siblings. But tell us again how you were able to determine I had 47. Through IP or e-mail.
Kevin Kessler aka Slartibartfast
Quote on
At the time I outed you as DeepCover7, I was regularly providing alias dictionaries to Mike and Buddha using an earlier version of this software. Using this information in addition to previously known information we were able to determine that (for instance) Byron/Roco/Rae/Tautology are all the same poster (Byron, I’m not doing this to out you – I think pretty much anyone who cares is already aware of this – I just feel it is necessary to show how and what sort of intelligence was generated to fuel the tidbits that we dropped. As I said in an email to you, I wish you’d go back to Byron – it seems more honest to me and I don’t think you were fooling anyone anyway… and I’m sure you aren’t now 😉 ) and get the following information on the email addresses (“authors” in the list) which were used to post under the name “Bdaman”:
Un Quote
Shut the fuck up you lying prick 🙂
Gene,
Does that demonstrate the point you were trying to make with the DHS 🙂
Slarti, I think a lot of folks here do not understand the existence of the “Darknet.” There is nothing private unless your stuff is heavily encrypted. Even then there are folks out there, many of whom work for governments (not just the USA) who are busy breaking codes. 128 bit encryption, if well done, is almost impossible to break, which is why WikiLeaks used it on their “Insurance” file. Having said that, no code is impossible to break, it is just that some are more difficult than others. Bdaman and others, there are no secrets on the Internet. And that is not all, even if you limit your social and business interactions to handwritten letters and a trusty old Royal typewriter, you will STILL find your private stuff is easily available for people who know how to look for it.
I just discovered the special web site set up by Social Security, and is fully HIPAA compliant is not all that secure.
Slarti, I look forward to hearing from you. I had wondered how you were doing.
Bdaman said:
“Seeing how you conspired with Slartibartfast to mine email adresses to look for sock puppets”
Shut the fuck up you lying prick
Not only were no email addresses nor any other personal information disclosed nor was anyone’s anonymity at all threatened, but I explained exactly how it was done on a thread you participated in last fall. This is but one of an endless litany of examples in which you have demonstrated your bad faith in discussions on this blog. Keep telling lies about me and I’ll mine every single bit of data you’ve ever left on this blog and use it to demonstrate how you have consistently been a worthless, dishonest troll (not to mention one of the biggest users of sock puppets on this blog… might that have something to do with your motive for making accusations you knew were false about me?) And I’ll do it all without ever giving a second thought to your email, IP address, or who you are in real life (honestly, I don’t fucking care–I suspect that knowing more about what a close-minded idiot you are would just be depressing). Remember that one of the consequences of my choice to reveal my name is that when you say something about Slarti you are also saying the same thing about Kevin–maybe you should consider whether or not making allegations against me that you know to be false is a good idea. In other words:
Shut the fuck up you lying prick
Gene,
Does that demonstrate the point you were trying to make with Sandi?
Blouise, OS, and Mike S,
You’ll be getting an email from me this weekend.
Raff,
Hi! No maffs in this one, mate! 😉
Basically the Government or anyone else collecting data on me from websites etc is a violation of Privacy. It is also why I don’t put anything on such websites that I am not willing for the world to see. Even with the so called privacy or security measures places like Facebook supposedly employ I have read entirely too much about hackers getting into such areas.
I actually read the ToS for many places I have been to as well. For instance Facebook claims or used to claim the right to hold and use anything you post on its site even if you should go back and delete it later.
I took that to mean that they feel they own anything posted on the site and decided to not post anything I wasn’t willing for the whole world to see.
The Government has been steadily encroaching on the rights of its citizens and none of the federal judges of late have had the “balls” to say enough is enough and start exerting their duty to uphold the constitutional freedoms of the citizens of the US.
The Patriot act is just one case where they have fallen down on the job. The bill allowing the government to hold people without trial for an indefinite period of time without any need to prove reasonable cause is another. Basically they just signed a bill legalizing kidnapping as long as it is done by a government official. Just like the TSA seems to have the “legal” ability to do things which would get a normal citizen arrested for sexual assault.
Freedom of speech is a really touchy subject as Gene is correct that it applies to all speech not just what I approve of. The reactions to said speech is definitely on the person reacting to said speech. You choose how you react to a given manner of talking. I have had several people apologize for using the more “raw” form of speaking. My general reply to it is that I am generally more amused than offended by such speech.
Oh and please let’s stop pretending to protect the children from something that someone decides should be censored. It is not the children you are trying to protect but rather you are exerting or attempting to exert control over others actions using “the children” as an excuse.
Basically if the government is accessing files and stored records that people have a reasonable expectation of being considered private then they are violating the 4th amendment of the constitution not just the 1st which is the one that protects free speech.
My current political position is that anyone who has supported the recent bills that are taking away the basic rights of the US citizen should be booted out of office. the problem however is finding honest politicians willing to set the country to rights.
Hi Oline,
I do agree with you when you say that what we need are some honest politicians.
Unfortunately, money and sex and luxury vacations and the like are ridiculously hard temptations for an ambitious man to resist. Especially when accompanied by such sincere assurances that co-operating will be to the benefit of the people in the long run and so on and on and on.
I believe as do many others here and all over America that the first thing we must do; in order to get those honest politicians is to completely remove private money from the political process. No more donations; no more PACs; no more Lobbying Congress.
Only then will we free our politicians and leaders to act in their own and the peoples best interest.
Only then will they be free to make vital decisions based on the will of the people rather than the will of the Big Corporations who pay them now.
But I agree with you
Major Internet Sites to Black Out in Protest of Anti-piracy Bill
The strike is slated to be the largest online strike in digital history, according to the founder of Fight For the Future.
By NICK FOLEY
Capital News Service
WASHINGTON – Devoted users of Wikipedia, Reddit, WordPress and Minecraft could be in for a surprise Wednesday as they log on to their trusted favorites: These sites, and as many as 5,000 others, will shut down for 12 to 24 hours.
Fight For the Future, a nonprofit organization devoted to maintaining freedom of expression on the Internet, organized the strike of, by its count, nearly 5,000 websites in opposition to the Stop Online Piracy Act, according to Fight For the Future founder Tiffiniy Cheng.
Rep. Lamar Smith, D-Texas, introduced the bill in October to keep third-party websites from stealing original content and then reaping the profits. This loss of money costs the economy $100 billion annually, according to a news release on Smith’s website.
The strike is slated to be the largest online strike in digital history, according to Cheng, who said the bill — which also exists in the Senate as “Protect-IP Act” — threatens the existence of the Internet as an open, deregulated network of websites dedicated solely to the people.
“The Internet is and will remain the platform for freedom of speech,” Cheng said. “This is about who controls the Internet, and it shouldn’t be corporate copyright holders.”
The movement began Nov. 16 with “American Censorship Day,” in which websites emblazoned anti-SOPA messages on their main pages, and quickly gained momentum as the bill moved its way through Congress.
Now, as senators ready themselves for the final vote Tuesday, some websites claim the bill’s effects could change the scope of the Internet by forcing sites to adhere to copyright laws they consider unreasonable. Yet according to a statement by Smith, such laws are necessary to punish criminals for their acts.
http://wheaton-md.patch.com/articles/major-internet-sites-to-black-out-in-protest-of-anti-piracy-bill-f1d40df6
WIKI’s tag line
Imagine a World
Without Free Knowledge
For over a decade, we have spent millions of hours building the largest encyclopedia in human history. Right now, the U.S. Congress is considering legislation that could fatally damage the free and open Internet. For 24 hours, to raise awareness, we are blacking out Wikipedia. Learn more.
Contact your representatives.
http://en.wikipedia.org/wiki/
About Boiling Frogs. This site run by whistle blower Sibel Edwards will probably be of interest to denizens of the Turley Blog.
Thanks, Mike. The war against rights always reminds me of the Parable of Frog Boiling too.
Sandi,
” ‘The right to free speech doesn’t come with a guarantee that you won’t be offended or insulted or intimidated’ but it does not mean I will or should celebrate receiving such.”
Actually it does. You along with every other American should celebrate the fact that our free speech has not yet been taken . You should revel in every “Fuck; every “Asshole” and every suggestion of incompetence, ignorance, or stupidity leveled at you as the unfettered excercise of that right.
Have I yet failed to inspire you to a new appreciation for the right to free speech?
That’s ok. I have a fall back position. If you can’t bring yourself to celebrate; you at least must admit your obligation to accept these more…raw expressions of the right to free speech…..
And having admitted that obligation;………..any whining and bitching about it that any person might undertake………well it would just be Bad Form. No?
I just now got around to reading this. Great post, Gene. As is the case with the erosion of most rights, the elimination of the right to privacy is gradual. Therefore it doesn’t cause any great alarm. And those who engage in the collection and organization of data are simply performing technical functions with no particular meaning.
TMYK,
I thought that was interesting too . . . especially if you followed some of their posts to other threads. Apologetics have certain smell to them that no amount of argumentum verbosium can cover.
Interesting to see brand new posters showing up and saying – with a lot of words that took someone a lot of time to type out – “this is no big deal”.
Says volumes, actually.
The requirement for anonymity is based in the proliferation of thought-crime laws here in the US. It is fact that I could be picked up and detained and subject to “enhanced interrogation” if I expressed opinions that landed me on a terrorist watch list. It’s in the NDAA 2012. If I wanted to argue that the Afgan terrorists are doing exactly what WE taught them to do to resist the USSR invasion in the 1980’s, that might label me a terrorist sympathizer. Right now that isn’t enough to get me in trouble, but the arrest of many “noncombatant ununiformed combatants” is only a matter of time in our War on Terror.
“I said that it is apparent that nobody’s opinion matters to you. ”
And you’d be wrong.
“You purport to be here to discuss issues and be part of a conversation, but the moment someone challenges your paradigm you turn into an offensive boor and no, you are not defending free speech, you are making a mockery of anyone trying to discuss anything with you.”
No, I’m making a mockery of the hypocrisy you display by saying you’re all for free speech as long as it conforms to your standards. But I am making mockery. Thanks for noticing.
“And I am done trying.”
Promises, promises.
I did not say my opinion OF you does or should matter Gene H. I said that it is apparent that nobody’s opinion matters to you. You purport to be here to discuss issues and be part of a conversation, but the moment someone challenges your paradigm you turn into an offensive boor and no, you are not defending free speech, you are making a mockery of anyone trying to discuss anything with you. And I am done trying.
Apparently retaining unconstitutional power to the government and facing the dangers of an ever expanding unitary executive power at the price of your rights to protect you from a threat that is less likely to kill you than a car accident or crossing a street is fine for you, Sandi, but I swore an oath to protect the Constitution including the Bill of Rights from all enemies foreign and domestic. Again, “[t]hose who desire to give up freedom in order to gain security will not have, nor do they deserve, either one.” – Benjamin Franklin. IMO, Franklin was right.
Slavery was not the government usurping a power and women’s civil rights was a natural progression as people became enlightened and educated and was not a “government instituted” situation either at its core (just like gay rights). Thinking the government will relinquish powers that have the potential to eradicate another 9/11 or even another Unabomber is “pie in the sky” IMO.
Sandi,
Some people’s opinions of me matter to me, Sandi. Just not yours. And you keep proving my point that I’m the one actually supporting and upholding free speech and its importance and that you’re the one just thinking that you do. Thinking apparently isn’t your strong suit. Denial is though. Denial is par for the course for hypocrites. It validates their self-image as consistent despite their blatant contradictions.