The DHS Wants to Know Who’s Spreading the News (or Expressing an Opinion), Your Rights Optional

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

125 thoughts on “The DHS Wants to Know Who’s Spreading the News (or Expressing an Opinion), Your Rights Optional”

  1. I usually do not leave a comment, but after browsing
    a lot of comments on The DHS Wants to Know Whos Spreading the
    News (or Expressing an Opinion), Your Rights Optional | JONATHAN TURLEY.

    I do have 2 questions for you if it’s okay. Could it be simply me or does it look as if like a few of
    the remarks look like they are written by brain dead individuals?
    😛 And, if you are writing on other places, I would like to keep up with you.
    Could you make a list of all of all your public
    pages like your Facebook page, twitter feed, or linkedin profile?

  2. AP,

    Thanks for posting that. I was thinking about doing a column on that story after reading it this morning. Still might.

  3. Thursday, Feb 28, 2013 10:30 AM EST

    Homeland security offers anything but
    The department is a black hole for tax dollars — and its funding could jeopardize our country’s infrastructure

    By Mattea Kramer

    http://www.salon.com/2013/02/28/tk_5_partner_4/

    Excerpt:

    Perhaps the strangest part of homeland security operations may be this: there isno agreed-upon definition for just what homeland security is. The funds Washington has poured into the concept will soon enough approach a trillion dollars and yet it’s a concept with no clear boundaries that no one can agree on. Worse yet, few are asking the hard questions about what security we actually need or how best to achieve it. Instead, Washington has built a sprawling bureaucracy riddled with problems and set it on autopilot.

    And that brings us to today. Budget cuts are in the pipeline for most federal programs, but many lawmakers vocally oppose any reductions in security funding. What’s painfully clear is this: the mere fact that a program is given the label of national or homeland security does not mean that its downsizing would compromise American safety. Overwhelming evidence of waste, duplication, and poor management suggests that Washington could spend far less on security, target it better, and be so much safer.

    Meanwhile, the same report that warned in early 2001 of a terrorist attack on U.S. soil also recommended redoubling funding for education in science and technology.

    In the current budget-cutting fever, the urge to protect boundless funding for national security programs by dismantling investment essential to this country’s greatness — including world-class education and infrastructure systems — is bound to be powerful. So whenever you hear the phrase “homeland security,” watch out: your long-term safety may be at risk.

  4. It seems to me that our focus was always against human rights violations and abuse, and that should be where our focus stays. If we stray from that, there will be no lasting justification for any military action. Our country has always prided itself as the world’s bastion against tyranny, we must not be pulled down from that stance, to a level of third world dictatorships who abuse and torture whomever they desire in the name of their country’s security. We have always been the world’s oasis of liberty and freedom. There is no reason, nor excuse plausible enough to relinquish this unparalleled stance.

    It is what makes our country great in the eyes of all the world. If we give it up for whatever reason, we will no longer set the example for the world to follow.

  5. DHS What IS Your Frigging Problem, You Boneheads need a good swift kick in the ass!

  6. “raff, since when did ignoring laws and administrative regulations ever stop the wingers?”

    Well, in point of fact, it never stopped anybody ELSE in government either. What the agencies in the executive branch, the legislators (these are the least guilty of it, of course, because they have less individual control of the reporting of their conduct) and the courts (most notorious for obvious reasons, and wielding the greatest power in general) do is to do exactly as they please, report or fail to report, distort or “redact” whatever they want, and flush the laws, regulations, rules and everything else down the big toilet of impenetrable power together with the rights of whomever they have targeted.

    A mother in Iowa (circa 1995) was ordered, AFTER SHE WON HER APPEAL, to not speak about what had taken place in the courts OR IN HER OWN LIFE OR IN HER CHILD’S LIFE OR IN HER MARRIAGE — with ANYONE — or she would lose all her parental rights. Her speech, by the way, was restricted based on CONTENT. She was not allowed to speak with her daughter about sex, for instance. The child was of an age where a girl asks her mother about sex. This was the combined acction of the judicial and executive branches in the State of Iowa. Bonnie Campbell was instrumental in putting this situation in place and she defended it viciously.

    The mother was not allowed to speak with her own therapist about anything that had occurred.

    The same happened to a woman in New York, whose husband was at one time the Chief Executive of Westchester County. In order to get her $3,333.33 per month alimony after a 40-year marriage, she was placed under a gag order that prevented her from speaking about either her situation or her FEELINGS about the situation or her husband or the court case, etc. (NO CHILDREN INVOLVED; NO SEXUAL ABUSE ALLEGATIONS INVOLVED; JUST DIVORCE AND MONEY INVOLVED — oh well, a little bit of public corruption, a little bit of adultery at the taxpayers’ expense, a little bit of campaign money here and there) even to her therapist. THEN the police came to her to interview her about her husband because he was about to be appointed a Supreme Court Judge in New York, and they interview every family member or ex-family member. She could not speak with them about it because of the gag order. Yet they put through the recommendation and the guy became a judge.

    This guy who went from being Chief Executive to Judge, by the way, had said in court that he did not UNDERSTAND the court order that had been handed down for him to pay alimony, and that was why he was not in contempt when he failed to do so.

    THAT was in the record that the ex-wife was not allowed to reveal.

    He’s a judge now. Quality of the courts has not diminished, though, because it couldn’t.

    All this is said anonymously. See, if I reveal who I am, Judge O’Anonymous in New York will figure out something. Can’t have that.

  7. Good for the goose is good for the gander; the principle of authoritarianism in America compels that equivalent scrutiny be accorded Big Brother as that which is doled out in the name of security under any principle of Big Brother rules. Can anyone be not subject to scrutiny under the American Constitution; after all, America is meant to be a democracy, not a dictatorship, or a monarchy. If anything, it is scrutiny under the Constitution which is compelling, not authoritarianism.

  8. “The point of this article is that the DHS has hired General Dynamics to collect personally identifying information on posters including IPs and email addresses”

    Thanks for pointing that out

  9. Bdaman,

    Do you ever come close to making sense? However, your rambling aside, I have no issue if you wish to mock Slarti. That’s between you two. I’ve said what I have to say about that issue and the point of the article. A point that you’ve clearly missed. I was also quite clear in pointing out the distinction between my point to Sandi: ” You just said others speaking in certain modes don’t deserve the protection of free speech. That’s the very essence of trying to control other’s speech, Sandi. Explicit, implicit, your message is still the same: others should conform to your standards.”; and your whatever it is with Slarti: “I’d also point out that knowing how someone speaks (sock puppets) is different from controlling how or what they say. [. . . ] The point of this article is that the DHS has hired General Dynamics to collect personally identifying information on posters including IPs and email addresses, with the goal of monitoring political dissent and to raise the question to what end is the government possibly going to use such information.”

    Summary:

    1) Controlling how people speak is controlling what they say.

    2) Knowing how someone speaks is identification of methodology, not control. Knowledge of methodology is not the equivalent of control.

    3) The DHS wants to know who is saying what and where, not how they are saying it – they know how as how is the means by which General Dynamics is providing the personally identifiable tracking information, and to posit the question “To what end?” The logical answer being to control what how and what they say through chilling free speech and/or intimidation of political dissent via mechanism of law.

    To my knowledge, you have never been identified personally here nor has your free speech been curtailed (and being demolished as nonsense by logic, reason and evidence does not count as curtailment, simply effective rebuttal). The day someone reveals your identity here or censors you for content (as opposed to some other egregious transgression you may or may not make such as assuming another poster’s identity) is the day you have a legitimate complaint. Until then, I suggest that what you have is a problem with somebody identifying your methodology, not censoring your content or revealing your identity as neither of those later events have happened no matter how you wish to conflate things. That or you simply like to fight with Slarti. Possibly all of the above.

    1. OS,

      I just assume anything on the web can be cracked given sufficient resources and that any government agency concerned with intelligence can obtain those resources if necessary and it is likely that many commercial groups can as well.

      Gene,

      Sorry for the hijack (or pseudo-hijack) of your thread. I felt the opportunity to call out Bdaman’s lies and contrast what I was doing to what DHS is doing was too good to pass up. Now excuse me whist I descend into the mud again…

      Bdaman,

      Listen up you sniveling troll–you will never be able to point out a lie I’ve told on this site… for the simple reason I’ve never told one. Sure, you’ll find the occasional factual error (which I will have corrected if it was pointed out–and, in several cases, was the one who pointed out my own error in the first place) and inaccurate opinion (usually noted as an opinion), but you wont find blatant lies or other intellectual dishonesty in my comments (which is but one example of the differences between us). Gene already pointed out how it was done (which was completely consistent with what I’ve previously posted here), so I will just point out what you are either too ignorant or too stupid to understand: there is a difference between knowing the email address used to post two different comments and knowing that two different comments were posted using the same email address. The first violates anonymity and the second does not. While it is true that the (publicly available) information that I made use of can theoretically be decoded to yield email addresses (which would violate anonymity), I currently have neither the time nor the resources nor the skills necessary to do so and, should all of those things change, I will never have the desire to do so. Contrast this with the DHS–an organization that does currently have the time, resources, and skills necessary to get your email address (and likely your IP address and more as well) in addition to an apparent desire to obtain such information. I don’t know if DHS has software monitoring your every virtual move right now, but it is obvious to anyone but a complete moron that they have the capability to do so easily and this article suggests that they are making use of that capability (while I don’t have the capability to do this at all). So remember that although you can use your free speech to tell lies about me, you cannot prevent me from using my free speech–and every bit of public information that you have willingly left on this blog–to point out your lack of integrity.

      By the way, if you want to use my name, learn how to spell it.

  10. Gene I’m just mocking your boy.

    Shut the fuck up you lying prick

    Gene,

    Does that demonstrate the point you were trying to make with the DHS

    is a copy of

    Shut the fuck up you lying prick

    Gene,

    Does that demonstrate the point you were trying to make with Sandi?

    with the name Sandi replaced with DHS.

    It’s a play right out of Andy’s book. We took names, we watched how they voted and we know where they live.

    Hint: Not Briepart

  11. Bdaman,

    You seem to mistake me for someone with a dog in this fight, but I seem to recall in Slarti’s initial exposition of his methods him specifically stating that no personally identifying information such as IPs and email addresses were collected, only anonymous tagging data linked to Gravatars (which are publicly displayed). I’d also point out that knowing how someone speaks (sock puppets) is different from controlling how or what they say. It seems to be merely a tool that shows if someone is attempting to build false consensus or helpful in identifying if a person is using multiple identities for other such propaganda tactics. But if you fellas want to roll in this particular dirt again? Be my guest.

    I’ll be the one in the clean clothes standing by the sideline, pointing to what this article is actually about. What point was I trying to make with the DHS story? The point of this article is that the DHS has hired General Dynamics to collect personally identifying information on posters including IPs and email addresses, with the goal of monitoring political dissent and to raise the question to what end is the government possibly going to use such information.

    I thought that was pretty clear, but then again, some people have better reading comprehension than others.

Comments are closed.