Platt Perspective on Business and Technology

John Peter Zenger, Henry L. Stimson, Edward J. Snowden and the challenge of free speech

Posted in business and convergent technologies, in the News by Timothy Platt on July 31, 2013

I find myself writing this posting as much as an exercise in organizing my own thoughts as one of expressing opinion. As of this writing, the news presents us daily with the unfolding story of Edward J. Snowden, a now former United States National Security Agency (NSA) technical contractor and the way he revealed the existence of a massive surveillance program codenamed operation PRISM.

PRISM is a massive civilian-targeting electronic surveillance program that operates under the supervision and oversight of the United States Foreign Intelligence Surveillance Court (FISA Court): a “secret court” in which all hearings are closed and all rulings are classified. Even the existence of specific hearings under FISA Court jurisdiction is classified top secret and release of that information deemed a violation of US federal law.

As a matter of intent, the civilian population that PRISM is intended to track and perform surveillance operations on consists entirely of foreign nationals and is not supposed to include surveillance of American citizens. But one detail that has come out as a result of Snowden’s leaks, is that according to internal PRISM reports they can only identify foreign nationals as such with something like a 51% accuracy rate, which with any margin of error means a flip of a coin guess.

Some of the largest social media and telecommunications companies that operate in the United States have been implicated in this for being ordered under FISA Court rulings to provide phone logs and confidential social media site personal profile information. And this news story has also spilled over to include release of information implicating the involvement of foreign governments in this surveillance program too. The United Kingdom and their Government Communications Headquarters (GCHQ) – their counterpart to the US NSA comes immediately to mind in that regard.

Snowden deeply embarrassed the Obama administration by revealing this ongoing activity and its penetration of so many private sector online and telephonic services, and in ways that by force of law specifically violated their publically stated privacy and confidentiality policies. This has equally deeply embarrassed any and every foreign government and any and every foreign intelligence gathering agency within them that has been implicated. This story has remained in the news at least in part from how Edward Snowden has evaded capture on charges of violation of the US Espionage Act, among other federal laws, by moving from country to country – and into countries that at least as of this writing at the end of June, 2013 have refused to honor extradition requests.

What exactly did Edward Snowden publically release? That definitely included highly classified documents and information. But unlike Bradley Manning, he did not dump hundreds of thousands of classified documents into the public arena that he could not possibly have had opportunity to individually review first. He did not just release classified information to release classified information, and instead restricted his leaking to just making the existence of this one surveillance program visible. To put this bluntly and in biased terms he let it be known that his government is spying on people, and that this includes surveillance of both foreign nationals and also American citizens that get caught up too. To put this bluntly and from an equally compelling if differently oriented perspective, he revealed the existence of a program that was intended to help identify terrorists as they communicate and share information online and through social media, and that in doing so he in fact endangered national security.

Both of those perspectives hold at least a significant grain of truth but both of them, at least when considered alone and as an only interpretation of this, are lacking too. The Obama administration, like that of his predecessor as US president: George W. Bush, has a penchant for classifying information, and at higher levels and for more documents and for more information than any previous administrations in US history and that includes presidential administrations that were in place during World War II and the Cold War. There are some very real questions of credibility in all of that, and certainly when the full categorical range of topics and issues and information types that are all but automatically brought under the classified information umbrella is considered. These questions come up again when the release of the existence of a civilian-targeting surveillance program comes up, and with that overseen by a secret court that by all appearances is not subject to any real third party review, and from any direction. And this brings me to search for what might be considered at least partial historical parallels as I attempt to make sense of all of this.

• One of them comes from early US history, with John Peter Zenger and how he was brought up on libel charges in 1735.
• The second comes from almost exactly two centuries later in US history, and President Herbert Hoover’s Secretary of State Henry L. Stimson, and a very different approach that he took towards surveillance of foreign nationals than I discuss here.

John Peter Zenger voiced opinion and published news embarrassing to the then colonial governor of New York: William Cosby, and in 1734 Cosby had his sheriff arrest this newspaper publisher on charges for doing so. Zenger was brought before a grand jury, but in spite of threats and intimidation, the members of this jury refused to bring charges against him. So in 1735, Cosby tried again and had him rearrested on charges of sedition and libel. This time he was brought to trial, but once again in the face of threats and intimidation this jury acquitted Zenger on all charges. One consequence of this series of event was to further establish the grand jury as an independent body, and another that is perhaps more frequently cited was to more fully establish freedom of the press.

Henry L. Stimson was the Secretary of State in the years leading up to World War II, when Hirohito’s Japan and Nazi Germany were building up for and preparing for wars of continent-wide, and together global conquest. Just considering Japan’s muscle flexing and its expansionist moves for now in that, Stimson did know their basic intentions even if he had no idea as to how far they would push them or that they might literally directly militarily attack Pearl Harbor and US interests. He, for example, formulated a containment policy that came to be known as the Stimson doctrine in an attempt to block further Japanese expansion after that country invaded and seized Manchuria in northeast China in 1931.

In 1929, while all of this was actively building up and in both Europe and Asia, Stimson shut down the State Department’s Cipher Bureau office that up to then was responsible for capturing and code-breaking foreign intelligence that would reveal capability and intent of potential adversaries – with that definitely including intelligence gathering related to Germany and Japan. And in this regard, he is famously known for justifying this on the grounds that “gentlemen don’t read other gentlemen’s mail.”

This quote is also attributed to Stimson as “gentlemen don’t read each other’s mail” but whatever his precise wording, the results where the same. The US did not capture intelligence as to Japan’s plans or intentions, or the information needed to understand the nature or depth of their frustrations with, among other things the Stimson doctrine. One reason why they lashed out in direct military attack on the United States when they did, as well as attack the Philippines and other sites was that the US was cutting off their supplies of essential raw materials that they could not produce themselves, but that they absolutely required, such as raw rubber.

The lessons of Zenger and his trials and tribulations at the hands of an angry governor and British colonial law would argue in favor of freedom of speech and of the public’s right and need to know. And for a still more recent US historical example in that regard, this discussion would be incomplete without at least citing the public outing of the Pentagon Papers. Their release was also intensely embarrassing for as sitting president and his administration: Lyndon Johnson and his administration. And he also sought to prosecute his leakers and certainly for that, under federal law and for release of classified information, the publication of which would harm US interests and security. But the consequences of this public airing and openness where, and certainly in the long run a lot more salutary and beneficial than they were anything like the harm that Johnson and his administration claimed they would be.

But even as I think of this as one view representing today’s events, I find myself thinking of Japan and of communications that could in principle have been intercepted and learned from, that would have clarified how their military and their Zaibatsu – their military-industrial complex, where hardening in their views and more and more strongly pushing for direct conflict. With a more detailed and nuanced understanding of their more internal deliberations, it might have been possible to limit and block more militaristic expansion without simply building up pressure for its redirection and explosive release – at us in the United States and towards key allies such as the Philippines.

And this brings me to my quandary as I think out the right and wrong of what Snowden did and of how the Obama administration has pursued him as a result. He did break the law and he did violate trust placed in him not to do so. But so did the sources of those Pentagon papers of Vietnam War fame. The government has a right and even a responsibility to prosecute violation of law, but how do you balance that in the crucible of this specific news story and this series of events, against the public right and even need to know?

I see too much sloppy journalism in how this is all being covered, with lines blurred between fact and editorial reporting and with factual errors too plentiful by far in both. As a very minor case in point, Edward Snowden did not work for the NSA as a spy or agent. He was a technical expert involved in the processing of data and reports collected in, and a back-office worker – not someone working in the field. At least as of this writing, his release of information has been very focused and limited, and directed towards informing the public of PRISM’s existence – not of what it has unearthed as to any specific intelligence findings.

I am going to conclude this posting with that, though I might very well return to it again in future postings too. Meanwhile, I have decided to post this note in Ubiquitous Computing and Communications – everywhere all the time 2 and also under my In the News posting category.

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