Espionage Act of 1917.... in 2012

Every once and a while, you realize that old laws really can play new tricks.  Take the recent U.S. Supreme Court arguments in Kiobel v. Royal Dutch Petroleum.  This case was brought by the plaintiffs under the Alien Tort Statute (part of the original Judiciary Act of 1789), a law originally intended to combat piracy, but now being used by human rights activists to seek justice for victims of human rights abuses under international law.

Today, the Obama administration has been making active use of the old World War I era Espionage Act of 1917 to police the leaking of information by government workers to the press.  As the New York Times reports, the Obama White House has been using this law to "silence" government workers more than others in the past, giving the following example:

"In one of the more remarkable examples of the administration’s aggressive approach, Thomas A. Drake, a former employee of the National Security Agency, was prosecuted under the Espionage Act last year and faced a possible 35 years in prison. His crime? When his agency was about to spend hundreds of millions of dollars on a software program bought from the private sector intended to monitor digital data, he spoke with a reporter at The Baltimore Sun. He suggested an internally developed program that cost significantly less would be more effective and not violate privacy in the way the product from the vendor would." (NOTE: more on Drake's case here)

Activist and writer Naomi Wolfe has warned in recent years about the potential of the Espionage Act to silence critics of government policy, particularly war. In a 2010 article reflecting on the Wikileaks scandal, Wolfe noted back in 2006 (before the Obama victory in 2008) that "forces that wish to strip American citizens of their freedoms, so as to benefit from a profitable and endless state of war -- forces that are still powerful in the Obama years, and even more powerful now that the Supreme Court decision striking down limits on corporate contributions to our leaders has taken effect -- would pressure Congress and the White House to try to breathe new life yet again into the terrifying Espionage Act in order to silence dissent."

So once again, the question of security versus freedom returns.  I wonder if this tension will ever resolve itself...

Monitoring Muslim student speech

I came across this article in the New York Times today about how the New York City police department monitored websites created by Muslim student organizations on college campuses.  While the mayors office has been trying to justify such monitoring--suggesting that the NYPD Cyber Intelligence Unit was perfectly justified in monitoring public websites as a way to "guard" the city against possible terror threats, university officials were less happy.  The article notes how Yale University President Richard Levin sent a memo to students, staff and faculty condemning such practices saying that "in the strongest possible terms, that police surveillance based on religion, nationality or peacefully expressed political opinion is antithetical to the values of Yale, the academic community and the United States.”  One of the universities monitored, Rutgers, issued a statement that it had been unaware of the monitoring. "While all the facts are not known and the reasons for actions of the NYPD have not been shared with the university," they noted in a somewhat cautious response, "it is important to state that Rutgers does not condone the surveillance of any members of our community based on their race, gender, ethnicity or religious beliefs.

The story, first brought to light by the Associated Press, is gaining traction.  According to NPR (from the Associated Press reporting) this surveillance of websites was part of a larger project:

"The student monitoring was part of a much larger intelligence operation that has put entire Muslim neighborhoods under scrutiny. The NYPD built databases showing where Muslims lived, worked, shopped and prayed. Plainclothes officers known as rakers eavesdropped in cafes, and informants known as mosque crawlers reported on weekly sermons."

Democracy Now provided some great reporting on this, including an interview with one of the students monitored by the NYPD and mentioned in its report.

Of course, Muslim student organizations and Muslim communities are also weighing in.  According to one report, the Rutgers University Muslim Student Association, in their response, noted "There is absolutely no justification in religiously profiling university students who attend this institution to attain intellectual liberation and positively contribute to American society." The Muslim Student Association of the University of Pennsylvania responded with a statement and is holding a public meeting to discuss the issue.The Harvard Crimson reported that the campus Islamic community was "dismayed" by the reports. Other Muslim student organizations are also posting responses--including Yale.

This issue raises many free speech questions for me--the impact of 9/11 on civil liberties, the degree to which so-called "security" should be balanced by freedom, the protection of student speech, and the protection of academic freedom on campus.  Seems to me that such actions--and now being more aware of those actions--might have some chilling effect on student organization willingness to post controversial issues on websites or in their publications. However, the revelation also seems to be prompting more speech on the matter, with responses on a spectrum from outrage at potential civil liberties violations to a deep defense of universities as spaces for the free exchange of ideas.  So, we will see where the story goes... I will be interested to see the fallout.

Political advertising and Super PACS

An article in the New York Times today highlights an issue that really concerns me--not only since I am teaching a free speech class, but also as someone who follows political campaigns with great interest.  I have long been concerned about the flow of money--especially money from corporations and extremely wealthy individuals--in our elections.  And, the U.S. Supreme Court decision in Citizens United in 2010 is really now showing its impact in the current Republican primary campaigns. As Nicholas Confessore and Michael Luo note, these "Super PACS" are really shifting the landscape in terms of who spends and who knows who spends.  As they suggest,

Groups supportive of each party employed a technique that allows them to cloak the identities of many of their donors. Those groups, including Crossroads and Priorities USA, have affiliates that are organized as nonprofit organizations known as 501(c)(4) groups, which can raise unlimited money but do not have to reveal their donors. Donors wishing to remain anonymous have the option of making their contributions to those nonprofit groups, which raised tens of millions of dollars in 2011, according to officials at the groups.

While Citizens United limits the degree of regulation governments can use to restrict the flow of such money, it seems important to know who is donating to these organizations which are flooding the media with all kinds of advertisements about candidates, all with limited accountability.  It seems to be enhancing the situation where those who have such super PACS on their side really benefit--making it difficult for candidates to remain viable in the face of such resources.  This may be especially concerning if such super PACS are bankrolled by wealthy individuals.  Here's an example from a super PAC supporting Newt Gingrich slamming Romney. 

Given how expensive it might be to produce and distribute these kinds of ads, does this not limit access?  Give certain people unfair advantages?  I really question this free market approach to elections.  It just seems to highlight how much they really are becoming like any other commercial transaction.  Something to buy.

Maybe that's not news, but I suggest it should be of great concern to us all if we are to have really free and fair elections. While defending a marketplace of ideas really seems important, should we not also be figuring out how to prevent elective offices going to the highest bidder?  At least it seems like this to me.