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Computers, Privacy & the Constitution
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The Press, The People, And Trump: The Need For (Much, Much) More Access
-- By KouroshShaffy - 22 Mar 2017
“As Americans grapple with the unreality of the new administration, George Orwell’s ‘1984’ has enjoyed a resurgence of interest, becoming a surprise best seller and an invaluable guide to our post-factual world.”[FN1]
Trump, from his campaign through today, has not missed an opportunity to publicly deride those of the press who oppose him—that is, report the truth. Conservative news sources are not immune to Trump’s attacks either.[FN2] In a country divided, led by a liar,[FN3] the press is vital to keeping citizens informed, but its rights are challenged by a government stealing from its citizens their data and personal information from the cyberspace.
The Rights of Freedom and Access The Founders knew the importance of the press citizens’ freedom. In the opening words of the Massachusetts Constitution’s Free Press Clause, John Adams wrote, “The liberty of the press is essential to the security of the state.”[FN4] The Founders established the constitutional guarantee of a free press in order to “[C]reate a fourth institution outside the Government as an additional check on the three official branches.”[FN5] In Supreme Court cases on the “right of access” to the press, however, the Court has drawn lines. Paradigmatically, in Houchins v. KQED, a case about the press’s right of access to prisons, the Court concluded that “[N]either the First Amendment nor the Fourteenth Amendment provides [the press] a right of access to government information or sources of information within the government's control…The public importance…and the media's role of providing information afford no basis for reading into the Constitution a right of the public or the media to enter those [government] institutions, gather information....”[FN6] Ultimately, as Potter Stewart put it, “The press is free to do battle against secrecy and deception in government. But the press cannot expect from the Constitution any guarantee that it will succeed. There is no constitutional right to have access to particular government information, or to require openness from the bureaucracy.”[FN7] His words ring eerily relevant today. The World Today With the rise of cyberspace and the advent of new technologies, the press in the 21st century is permanently altered. Today, anybody can be the press, much news reporting “...now in public hands because of the Web.”[FN8] But despite an expansion of who, and where, the press is, constitutional limits to rights of access have remained unchanged. This creates an inherent and horrifying dichotomy: while citizens have more access than ever to myriad news sources, the government is no more transparent, despite its having more access than ever to citizens. In McIntyre v. Ohio Elections Commission, the Supreme Court established a constitutional principle of anonymity by translation, identifying values from the original First Amendment and translating them into a modern context: “While the framing world was not an anonymous one, it was clear that one had the right to build walls.”[FN9] Cyberspace is a breeding ground of anonymity, and “With blogging and the online space generally…Opinion in reaction to the news can come from anywhere.” [FN10] The press as a fourth check on government is more vital than ever, and yet the openness of the Internet allows Trump supporters, dismayed by press reporting real facts on the President, to turn to some anonymous blogger reporting “the truth” and feel vindicated, as it seems “[T]he more the fact-based media tries to debunk the president’s falsehoods, the further it will entrench the battle lines.”[FN11] An expansion of the right of access for today’s press—journalists and anonymous bloggers alike—can only help expose more citizens to truths about the government, while helping hold government actors accountable to the American public. In the meantime, inside sources, including whistleblowers like Edward Snowden and William Binney, help fill the gap.[FN12] Wikileaks continues to play an important role in this regard, for example, just recently revealing that, “By the end of 2016, the CIA's hacking division…had produced more than a thousand hacking systems, trojans, viruses, and other ‘weaponized’ malware…The CIA had created, in effect, its ‘own NSA’ with even less accountability.”[FN13] Still, in a world dominated by cyberspace, where the government can readily access every citizens’ metadata,[FN14] where what a tech giant claim is safe for your privacy, isn’t,[FN15] this is not enough. Conclusion The Constitution must be read—or rather, translated—to significantly bolster the press’s right of access to governmental institutions and hidden information, in light of the government’s lies and accessing of citizens’ private data. In his dissent in Olmstead v. United States, Brandeis argued that, though technology had changed, “that change should not be allowed to change the meaning of the Constitution. The Constitution should protect now what it protected then.”[FN16] The government may continue to lie, and growing technology may help the government lie better, but the press—in whatever its form—must be made better able to discover the truth. CITATIONS (1) Charles J. Sykes, Why Nobody Cares the President Is Lying, N.Y. TIMES, February 4, 2017, https://www.nytimes.com/2017/02/04/opinion/sunday/why-nobody-cares-the-president-is-lying.html. (2) Nick Gass, Trump says he won't appear on Fox News, POLITICO (Sept. 23, 2015, 12:08 PM), available at http://www.politico.com/story/2015/09/donald-trump-fox-news-213971(“‘Fox News been treating me very unfairly & I have therefore decided that I won't be doing any more Fox shows for the foreseeable future,’ Trump tweeted.”). (3) Sykes, supra note 1 (“During his first week in office, Mr. Trump reiterated the unfounded charge that millions of people had voted illegally. When challenged on the evident falsehood, Sean Spicer, the White House press secretary, seemed to argue that Mr. Trump’s belief that something was true qualified as evidence.”); see also David Leonhardt, All the President’s Lies, N.Y. TIMES, March 20, 2017, https://www.nytimes.com/2017/03/20/opinion/all-the-presidents-lies.html?ribbon-ad-idx=2&rref=opinion&module=Ribbon&version=context®ion=Header&action=click&contentCollection=Opinion&pgtype=article&_r=1 (“[Trump] lies. He lies in ways that no American politician ever has before. He has lied about — among many other things — Obama’s birthplace, John F. Kennedy’s assassination, Sept. 11, the Iraq War, ISIS, NATO, military veterans, Mexican immigrants, Muslim immigrant, anti-Semitic attacks, the unemployment rate, the Electoral College, voter fraud and his groping of women.”). (4) Potter Stewart, “Or of The Press”, 26 Hastings L.J. 631, 634 (1975). (5) Id. (6) Houchins v. KQED, Inc., 438 U.S. 1, 1-2 (1978). (7) Stewart, supra note 4, at 636. (8) Jay Rosen, Bloggers vs. Journalists is Over, PRESSTHINK, (Jan. 21, 2005), available at http://archive.pressthink.org/2005/01/21/berk_essy.html. (9) Lawrence Lessig, Reading the Constitution in Cyberspace, 45 Emory L.J. 12 (1996). (10) Rosen, supra note 8. (11) Sykes, supra note 1. (12) Jewel v. USA, Declaration Of William E. Binney In Support Of Plaintiffs’ Motion For Partial Summary Judgment Rejecting The Government Defendants’ State Secret Defense, https://info.publicintelligence.net/NSA-WilliamBinneyDeclaration.pdf. (13) Vault 7: CIA Hacking Tools Revealed Press Release, WIKILEAKS, March 7, 2017, https://wikileaks.org/ciav7p1/. (14) Jacob Applebaum, Citzenfour (2014) (“With a MetroCard? and with a credit card, alone, like literally where you go and what you buy, and potentially by linking that data with other people on similar travel plans, [the government] can figure out who you talk to and who you met with. When you then take cell phone data, which logs your location, and you link up purchasing data, Metrocard data, and your debit card, you start to get what you could call “metadata” in aggregate over a person’s life. And metadata, in aggregate, is content.”). (15) Manisha Ganguly, WhatsApp vulnerability allows snooping on encrypted messages, THE GUARDIAN (Jan. 13, 2017, 6:00 AM), available at https://www.theguardian.com/technology/2017/jan/13/whatsapp-backdoor-allows-snooping-on-encrypted-messages (“Facebook claims that no one can intercept WhatsApp? messages, not even the company and its staff, ensuring privacy for its billion-plus users. But new research shows that the company could in fact read some messages due to the way WhatsApp? has implemented its end-to-end encryption protocol.”). (16) Lessig, supra note 9, at 4 (citing Olmstead v. United States, 277 U.S. 438, 474 (1928)). You are entitled to restrict access to your paper if you want to. But we all derive immense benefit from reading one another's work, and I hope you won't feel the need unless the subject matter is personal and its disclosure would be harmful or undesirable. To restrict access to your paper simply delete the "#" character on the next two lines:
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