How Civil Libertarians Helped the Government Crack Down on Privacy and Press Freedom

Human Rights

Pando's Mark Ames has a pair of stories that seek to explain how the government's war to control information—expressed through an attack on the privacy rights of American and a crackdown on government whistleblowers—was won.

In the first piece, Ames looks at how Congress passed the first law, in 1982, that made it illegal to publish the name of a CIA officer. A few years before, the CIA's chief in Athens, Greece was assassinated by a Greek left-wing terrorist group. Many blame a counterculture newspaper called CounterSpy, which had as its mission to undermine the organization, including by outing its agents.

Although CounterSpy was not the publication that originally outed the chief (that was a paper in an entirely different continent), it was blamed for the chief's death, and there was a movement to crackdown on publication regarding the CIA's activities. After Jimmy Carter's relatively dovish presidency ended, President Reagan made protecting the CIA a key priority, and supported those in Congress who had been trying for the past few years to crack down on whistleblowers.

The Congress and the Reagan administration crafted legislation called the Intelligence Identities Protection Act. But they didn't craft it alone. They brought in leading ACLU attorney Jerry Berman (who later founded the Electronic Frontier Foundation) and Morton Halperin, a former Nixon official who sued the president for tapping his phones (who today works at George Soros's Open Society Foundation). They got Halperin and Berman to agree to back the legislation if they agreed to a few compromises, thus getting two of the biggest civil libertarians in America behind them.

They also won the support of then-Rep. Ron Paul (R-TX), who would soon hold the flag of the Libertarian Party in the presidential election.

Thus the CIA was able successfully to criminalize leaks. The same law today was used to prosecute CIA torture whistleblower John Kiriakou, who was just released to house arrest.

In Ames' second story, he looks at how we are failing to rein in the government's war on our privacy. He notes that many of the same civil libertarians who are trying to reform laws such as the 1986 Electronic Communications Privacy Act (ECPA) approved its passage to begin with, including the ACLU.

These marriages of convenience are proving difficult to undo, as not only are nonprofit leaders working against the same compromises they once forged, but so are lawmakers. Senator Patrick Leahy (D-VT), one of the lawmakers who sponsored the original ECPA, is trying to amend it today to rein in the mass collection of telephone metadata.

The problem is that the compromises being forged today also allow for warrantless government surveillance of email metadata to continue, as is written in the bill:

"The government may use an administrative or grand jury subpoena in order to obtain certain kinds of electronic communication records from a service provider, including customer name, address, session time records, length of service information, subscriber number and temporarily assigned network address, and means and source of payment information."

Ames raises an important question: at what point do we come to understand that the compromises we made in the past are making it increasingly difficult to roll back a war on privacy and press freedom that by now the government is winning?

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