Free speech and privacy are inextricably linked
The chilling effect of wide-ranging government surveillance has deeply disturbing implications for our First Amendment rights
By Margot Kaminski
Freedom of speech, freedom of association, and freedom of the press: all three of these freedoms are under threat today. But why? The United States has long protected freedom of speech, and the current Supreme Court has made it clear that it strongly prioritizes the First Amendment. The United States also has, however, a tradition of underprotecting privacy. As we celebrate Free Speech Week 2013, we need to recognize that, going forward, we ignore the connections between speech and privacy at our peril.
The Supreme Court has explained that privacy is necessary for freedom of association, which in turn affects freedom of speech. The Court has used the First Amendment to protect vulnerable dissident groups from having their membership lists disclosed. Disclosure of membership lists can persuade members to withdraw from a group, or dissuade new members from joining, producing a chill in both association and expression. Decreased freedom of association lessens the variety of contributions to the marketplace of ideas. It’s in this tradition that Justice Sonia Sotomayor noted last year that unchecked GPS tracking can chill associational and expressive freedoms. This summer’s revelation that the NSA accesses and mines the time, date, and phone numbers of phone calls made by millions of Americans raises the same worry: that government surveillance will chill citizens’ freedom of association and expression, reducing the variety of viewpoints and the vibrancy of discussion.
Surveillance of call records also threatens freedom of the press. Reporters rely on maintaining their sources’ trust, and whistleblowers won’t come forward if they fear their identity might be revealed. In May, before the NSA revelations, the Justice Department revealed that it had seized two months’ worth of phone records belong to the Associated Press. The AP responded that sources immediately became less willing to talk to AP journalists. The turn to secret courts and increased classification means that many sources will also be lawbreakers. The recent aggressive prosecution of leaks certainly heightens sources’ reluctance to come forward, as do attacks on the reporters’ privilege -- the ability of reporters to be legally protected from having to reveal their sources in court. Self-help by reporters, such as using encryption to maintain privacy, might increase the chance of getting targeted for surveillance or result in reporters being accused of conspiracy or aiding and abetting a leak. Encryption services, rather than turn over keys to the government, have been shutting down. This is not an environment friendly to hard-hitting journalism or to whistleblowing.
But perhaps the strangest aspect of the privacy-speech mess in which we’ve found ourselves is that in defense of its surveillance systems, the government has created direct and traditional restraints on speech. Private companies such as Google and Microsoft are not allowed to discuss the federal government’s access to user information, even in aggregate. These companies have petitioned the Foreign Intelligence Surveillance Court to allow them to speak about the scope of surveillance. A related case challenges National Security Letter gag orders—which prevent a company receiving a National Security Letter from talking in any way about the letter, even in aggregate—as being unconstitutional prior restraints on speech. As long as these restraints are in place, and intelligence agencies continue to obfuscate, it is impossible to have concrete public discussion of the scope of government surveillance.
We are extraordinarily lucky to live in a country that was built on the principle that free speech and good governance are deeply intertwined. And we would be extraordinarily short-sighted if we fail to see how extensive government surveillance and the secrecy around it fundamentally threaten this principle. Surveillance threatens the reliability of our information infrastructure, our ability to freely associate, the ability of our press to operate, and even the fundamental ability of the public to freely discuss government actions.
As we celebrate Free Speech Week, we must recognize that new battles lie ahead. They are unfamiliar to some, but are every bit as essential as protecting the distribution of pamphlets, the unpopular speaker, or the printing press from undue government restraint. The Internet is our printing press now. And it’s watching you.
Margot Kaminski is the executive director of the Information Society Project at Yale Law School. She can be contacted at firstname.lastname@example.org.