Carey

Shenkman

First Amendment and Human Rights Lawyer


Reading Materials for March 2015 NLS Lecture on Intersection of Privacy, Speech, and Technology

March 31, 2015, Carey Shenkman0 Comments

On March 26, 2015 I had the privilege of lecturing in the class of friend and colleague Gautam Bhatia at the National Law School in Bangalore.

Here are some of the reading materials from that lecture, which focused on the intersection of privacy, speech and technology through a case study of the developing human rights framework around encryption technology:

Call for submission of Information: Special Rapporteur will study the use of encryption and anonymity in digital communications in his 2015 HRC report

Article 19, Response to UN Special Rapporteur’s Call for Comments on Encryption and Anonymity Online

Privacy International, Submission to the UN Special Rapporteur on freedom of expression – anonymity and encryption in digital communications, February 2015

(Ongoing) Compilation of Sedition, Anti-Journalist, Internet Access Laws

August 14, 2014, Carey Shenkman0 Comments

United States

  • Espionage Act – 18 U.S.C. 793 — passed 1917, widely used first against socialist opposition to WWI, then against whistleblowers. Most notably against eight (more than all previous Presidents combined) under the Obama administration. There have been attempts (none yet successful) at prosecuting journalists under the law. The closest case is the AIPAC Rosen case from 2006 (prosecution dropped) where two lobbyists were indicted for conspiracy to commit espionage. Sections of the Act punish “unauthorized communication of national defense information” and “willful communication of classified intelligence with an unauthorized person.” The Act has no public interest defense, meaning even if the whistleblower revealed something as obviously heinous as the US gov operating gas chambers, that would not be admissible in court. Eugene Debs, Thomas Drake, John Kiriakou, Jeffrey Sterling, Daniel Ellsberg, and Chelsea Manning were famously prosecuted under the Act. Edward Snowden was charged under the Act. The law carries sentence of 10 years but under some circumstances (could carry death for giving information to the enemy during wartime).
  • Computer Fraud and Abuse Act — 18 U.S.C. 1030 — passed in 1986, which punishes “exceeding authorized access” of a “protected computer.” Computers affecting interstate commerce fall under this broad definition, which means it can pertain to almost any machine. If the access results in the commission of any crime or tort, then it becomes a felony–again broad considering the number of crimes and civil actions available. Used against Chelsea Manning, Jeremy Hammond, and the Paypal 14
  • USA PATRIOT ACT — [expand, NSLs  etc]
  • In February 2015, US Senator Patrick Leahy pressured payment companies to cut support for hosting services that encrypt, leading PayPal to cut support for Mega. This echoes similar tactics used (unsuccessfully) again Russian banks in 2014 and for years against Visa, Mastercard, Paypal and other providers in the ongoing financial blockade against Wikileaks.

United Kingdom

  • British Terrorism Act 2000 — Schedule 7 — used to detain David Miranda, partner of Glenn Greenwald, for nine hours at Heathrow airport, without right to attorney or right to remain silent. [expand]

France

  • Article 421-2-5, French Criminal Code — good coverage by Article 19 — Publicly condoning (faire publiquement l’apologie) acts of terrorism is a crime under Article 421-2-5 of the French Criminal Code. The offence is punishable with up to five years’ imprisonment, and a fine of €75,000. Harsher penalties for the offence are available when it is committed online, allowing up to seven years’ imprisonment and a fine of €100,000.

Australia

  • Part VII of the Crimes Act 1914 (Commonwealth), entitled Official Secrets and Unlawful Soundings. In late 2013, Australia passed the Public Interest Disclosure Act, which went into force January 2014. The PID Act provides a defense for whistleblowers who first exhaust administrative channels, or are able to show that those channels are inadequate. The Act only applies to disclosures if they are not made to foreign government officials, a formulation that lends itself to the problematic argument that the law would protect disclosures to the media (which are presumably followed by foreign governments). Finally, the law flatly exempts intelligence information, or anything relating to intelligence agencies.

Canada

  • Security of Information Act — the Ontario Superior Court of Justice in O’Neill v. Canada (Attorney General) struck down the “leakage” provisions of the SOIA, as they 1) restricted free expression, 2) were vague and overbroad, and 3) failed to contain an element of fault. “The recognized purpose of section 4 is to deter and protect against the “unauthorized release of government information that
    carries with it some element of harm to the national interest if released, causing it to be categorized as ‘secret official’ or ‘official.”’ Its terms provide up to 14 years’ imprisonment for any person “who receives any secret official code word, password, sketch, plan, model, article, note, document or information,” who “has in his possession any official document or secret official code word of password issued for the use of a *61 person other than himself,” who fails to return it, or who “communicates” a ““secret official” item.” Larsen & Atcherley, 5 J. Int’l Media & Ent. L. 49 (2014).
    The O’Neill case dealt with the use of the law to execute search warrants on the home of a journalist writing on Maher Arar (the Syrian-Canadian national tortured under the US rendition program and who ultimately received millions in compensation from the Canadian government and an official apology from PM Stephen Harper). Although in the case the Crown argued for a public interest defense, the court rejected it, citing to the fact that the UK didn’t have a public interest defense and that some sections of the law (but not others) contained the defense, thereby signaling legislative intent to the contrary.

Denmark

  • Section 152(1) of the Danish Criminal Code (Straffeloven), punishes with up to six months imprisonment any current or former public official “who unlawfully passes on or exploits confidential information” obtained in connection with their office or function. Section 152 also requires secrecy of confidential or otherwise protected information in order to protect security, defense, and foreign policy.
  • Denmark provides a public interest defence which can be invoked to avoid sanction if a person is convicted of disclosing state secrets.4 In doing so, a court will balance several factors, including the national security interest, actual harm, and public interest served by disclosure. In the case of Denmark v. Larsen, three journalists were acquitted after publishing news articles including state secrets related to the justification of the Iraq war. The court rejected Denmark’s arguments that the publications would strain foreign relations, and acknowledged that the stories added to the public debate on the issue. The defense in Denmark is not ironclad and has not been applied consistently; in the Frank Grevil case, involving an intelligence operative who revealed that Denmark’s PM ignored evidence that WMDs didn’t exist in Iraq, a court ruled that information concerning the political
    discussions on Denmark’s involvement in military actions in Iraq was not sufficient to meet the requirement of “an obvious public interest.” Prosecutors v. T (Frank Grevil), Eastern High Court of Denmark, no. U2006.65O – TfK2005.796/1 (2005). Grevil was sentenced to four months imprisonment.

China

  • China strongly weighs requiring providers to allow government “golden keys” or backdoors to software

Japan

  • Specially Designated Secrets Act. Passed December 2013, punishes unauthorized disclosure of specially designated secrets with 10 years imprisonment. “The government’s handling of the 2011 Fukushima nuclear reactor disaster—including arrests, home searches and interrogations of reporters who covered the story—was but the most recent, egregious instance. Reporters Without Borders dropped Japan to 53rd out of 180 countries in its press freedom index for 2012, and down another six points in 2014, because of continuing Fukushima secrecy, the new secrecy law, and exclusion of freelance journalists from many press briefings.”
  • Great compilation of materials and analysis by Right2Info here

Ethiopia

  • 2009 Anti-Terrorism Proclamation / “Planning, Preparation, Conspiracy, Incitement and Attempt of Terrorist Act” (Article 4). In summer 2014 10 journalists and bloggers were charged under terrorism law for attending secure communications trainings by NGOs. Security in a Box is a popular digital security guide for journalists and human rights defenders, put together by Tactical Tech and DigiDefenders. “In a manner calculated to conceal the groups’ lines of communication from government agents the accused have assisted, organized and took part in a training of communication encryption tools called “Security in Box”. By doing so the accused intentionally embraced the strategies and sought support of the terrorist organization.” The provision under which the #FreeZone9Bloggers were charged and arrested punishes “Whosoever plans, prepares, conspires, incites or attempts to commit any of the terrorist acts stipulated under sub-articles (1) to (6) of Article 3 of this Proclamation is punishable in accordance with thepenalty provided for under the same Article” Two copies of the Security in a Box book were admitted as criminal exhibits. Documents seized from the journalists as evidence include:
    • “Training manual for defenders of civil liberties”
    • “Training manual about internet security”
    • “Hand written security procedures of covering a rally – 61 pages”
    • “Manual of security procedures located in flash drive”
    • “Training manual organized by civil rights defenders on how to circumvent censorship”
    • “Encryption tools and changing passwords – 129 pages”
    • “Invitation letters send to him to attend digital security training”
    • “Digital security manual for human rights defenders – 18 pages”
  • Further, Article 5 of the Proclamation punishes (with 10-15 years imprisonment) rendering material support, which can include “provid[ing] a skill, expertise or moral support or [giving] advice” and “provid[ing] any training or instruction or directive”

South Africa

  • Protection of State Information Bill — yet to be signed into law. Punishes publication of state secrets with up to 25 years imprisonment. No public interest defense.

Afghanistan

  • “independent outlets and publications have been denounced or fined for content that “opposes Islam and national values,” and in April 2013 Karzai supported a request by conservative clerics to ban television programs that are considered “counter to social morality.” Freedom House Report 2014

Bahrain

Iran

  • Anonymity tool TOR is blocked regularly in what is described as a game of cat-and-mouse.

Pakistan

  • Protection of Pakistan Ordinance (July 3, 2014) — broadly increasing police powers akin to Patriot Act in the US. For instance ‘insurgent’ and ‘cyber crimes’ not identified at all. Human Rights Commission Chairperson I.A. Rehman writes: “the final version does not meet our concerns regarding the possibility of abuse by targeting political dissidents, the retrospective application of the law to legitimise illegal detentions (especially in Balochistan), and legitimisation of safe house.”

India

  • Official Secrets Act of 1923 — Section 5 prohibits the “[w]rongful communication … of information.” It criminalizes any person who “voluntarily receives any secret official code or pass word or any sketch, plan, model, article, note, document or information knowing or having reasonable ground to believe” it was communicated in violation of the OSA, who fails to return information, or who “willfully communicates” this information. A case against financial journalist Santanu Saikia for publishing contents of a note from the Cabinet of India regarding divestment policy was dismissed by a criminal court judge in 2009, on two grounds. First, there was no harm to the state, and second, the court did not interpret the OSA to apply to “secret” documents rather than “secret official code or password.”

Malaysia

  • Sedition Act of 1948 — There were widespread calls in September 2014 to recall the country’s colonial-era sedition act, which is disproportionately used against non-Malays and non-Muslims. In February 2015 the law was used against the Secretary General of the socialist party for criticizing a sodomy ruling as part of a crackdown on bloggers.
  • Government threatened to ban Facebook in August 2014, for misuse (though mainly for criticisms of government). The move is likely impractical given the country’s 15 million users.

Thailand

South Korea

  • National Security Act — United Nations special rapporteur for human rights defenders, Margaret Sekaggya called it “seriously problematic for the exercise of freedom of expression.”  “Article 7 of the law long criticised as an unjust limit to freedom of expression, prescribes legal punishment for “any person who praises, incites or propagates the activities of an anti-government organisation.” In 2013 103 people were imprisoned under the law.

Vietnam

  • Filing of mass abuse reports in social media like Facebook by “opinion shapers” (du luan vien) to suspend accounts of human rights activists and organizations. 100 accounts suspended as of June 2014.
  • Article 258 of Penal Code– “abusing democratic freedoms” carries 2-7 years in prison. The law is used against bloggers and dissidents. The law punishes “bad content and incorrect information that reduces prestige and trust in state agencies.” Perhaps unsurprisingly, Vietnam made RSF’s “Enemies of the Internet” list.
  • Decree 174 (January 2014), penalizes dissemination on social media of content that includes “anti-State propaganda,”  or “reactionary ideologies”
  • Decree 72 prohibits the use of social media to share information reported in the press.
  • “Passwords are frequently hacked, and connection speeds are often slowed on days when dissidents are arrested or put on trial.” -RSF

Russia

  • Anonymous wi-fi ban. Public wi-fi networks require passport-validated phone numbers to connect. Passports are required to purchase SIM cards in Russia.

Can Israeli soldiers be sued in U.S. courts under the ATS?

August 5, 2014, Carey Shenkman0 Comments

The actions of Israel almost certainly war crimes, and Palestinian Foreign Minister Riad al-Malki just met with officials from the International Criminal Court to see if they can do something about. It’s unlikely, though; neither Israel nor Palestine fall under its jurisdiction. The body with ability to grant jurisdiction–the UN Security Council–gives the United States veto power over any decisions.

Is there anywhere else to bring a lawsuit? There may well be, and in the United States, of all places. Under a law that is as old as the United States itself. Attempts to sue the IDF were dismissed in 2005 and 2008. Under current circumstances it may be very difficult but worth another go.

The Alien Tort Statute (ATS), passed in 1789, creates a way for non-U.S. citizens to sue for damages in U.S. courts for violations of the “law of nations.” At the time, the law created a forum for victims of piracy on the high seas to sue those pirates they tracked down in the U.S. It also created remedies for diplomatic incidents, like if one diplomat punched another, as actually happened to a French diplomat in the infamous “Marbois-Longchamps affair.”

Since the 1980s, human rights violations are fair game under the ATS. The Center for Constitutional Rights brought the landmark Filartiga v. Pena-Irala case (1980); two Paraguayans sued a former Paraguayan police chief who tortured and murdered their relative. The Second Circuit Court of Appeals held that the ATS applied because all the criteria were met: the Paraguayans were aliens, they were suing the police chief (then located in the United States) for civil damages, and the conduct alleged (torture) was uniformly proscribed by international law. In essence, Filartiga opened up a new field of litigation for violations of the most fundamental human rights norms.  The U.S. Supreme Court held in Sosa v. Alvarez-Machain (2004) that courts today have jurisdiction to hear claims for violations of international law that are as specific and universal as the torts recognized at common law. Last year, the Supreme Court limited the jurisdiction to hear ATS cases–more on this later.

The question is–can the families of those killed in Gaza bring an ATS suit in U.S. federal court against Israeli soldiers? If they are aliens, then they may be able to sue for compensation in the United States.

There have been widespread international calls for justice: the UN Human Rights Council voted to investigate the IDF’s actions in Gaza (the United States was the only country to vote against, though seventeen countries abstained). UN High Commissioner for Human Rights Navi Pillay said that the IDF’s repeated attacks of civilians showed a “deliberate defiance of obligations” under international law, and that any actions by Hamas do “not absolve [Israel] from not itself observing its obligations.”

Deliberate and disproportionate attacks on civilians are violations of the law of war–so are unlawful deportations, displacements, and extensive destruction of homes and personal property, all of which Israel has committed not just in the last month but since the 1940s. The Rome Statute establishing the International Criminal Court lays out specific criteria. Although the United States has signed but not ratified the statute, most of the definitions contained in the Statute represent widely accepted customary international law.

There are further strong arguments for the commission of genocide and crimes against humanity by Israeli forces.

When considering an ATS lawsuit under these circumstances, there are some important hurdles:

1) Is the suit precluded by the Foreign Sovereign Immunities Act (FSIA)? Probably not, depending on the defendants. The FSIA immunizes foreign governments and their instruments from the jurisdiction of U.S. courts. However in Samantar v. Yousef (2010) the Supreme Court held that this doesn’t immunize foreign officials or individuals. This means that individual officials and soldiers are probably fair game, while the state of Israel and the whole IDF may be harder (if not impossible) to slip through the FSIA. For instance, the D.C. Circuit in 2008 dismissed a suit by the Center for Constitutional Rights, Belhas v. Ya’alon, against a former IDF commander responsible for shelling a UN compound in Lebanon, killing over 100 civilians and displacing more than 400,000. The rationale of the D.C. Circuit in calling Ya’alon an “instrumentality” of the state of Israel would probably not hold today. (shockingly, the Chief Judge said that the FSIA at the time would preclude suits against the Third Reich).

2) Is the suit precluded by the political question doctrine? A bigger issue, and there is a good chance. Under Baker v. Carr (1962) the political question doctrine bars suits when the courts would interfere with the foreign affairs policies of other government branches. This happened in Doe v. Israel (2005) where the doctrine stopped an ATS suit against Israel by Palestinians living in Israel and the West Bank. The political question doctrine is not clear cut, and it is important to keep in mind that the ATS necessarily involves political questions. Courts will admit statements of interest (SOIs) from the executive, but these aren’t controlling.

3) Is the suit precluded by the act of state doctrine? This is related to the political question issue. Courts do not want to validate or invalidate the actions of foreign governments. In determining this issue they consider several factors, most importantly whether the decision would affect U.S. foreign relations. However, torturing someone isn’t a legitimate exercise of state power. There are strong arguments that jus cogens violations aren’t acts of state. Those are the types of violations at issue here.

4) Is the suit precluded by the new “touch and concern” rule in Kiobel v. Royal Dutch Petroleum? Again, maybe. Last year the Supreme Court limited the jurisdictional reach of the ATS in extraterritorial cases, by requiring that the conduct “touch and concern” the United States. The Kiobel case concerned brutal executions of peaceful Ogoni protesters in Nigeria, which the defendants (Dutch Shell) and their amici spun as “extraterritoriality cubed” because the case involved foreign plaintiffs, foreign defendants and action abroad. It is still unclear what the “touch and concern” language means. But there is a possible problem here since a suit against Israeli soldiers would involve foreign plaintiffs and defendants and conduct abroad. There is however still an argument that the conduct touches and concerns the United States, given the military support the U.S. gives to Israel, and that Israel restocks weapons from U.S. armories.

It has been nearly a decade since Doe v. Israel was decided, and it was only a district court opinion that was highly deferential to Israel. It’s time to look at these issues afresh. There might still be several issues that could cause an ATS suit to fail, but the case is legally buoyant. Case law has evolved, and the political support for Israel’s inhumane acts is becoming less and less tenable.

Security is a skill, and should be learned by application

August 1, 2014, Carey Shenkman0 Comments

In the last year security has been brought to the forefront of debates on journalism and human rights, as it is clear that electronic information and communication is not safe from governments or even private parties with the right know-how.

Many organizations have published guides on security, and several of these are excellent. Security-in-a-Box is one of the most popular (put together by Tactical Tech and Digi Defenders): very practical and down-to-earth. Susan McGregor at the Tow Center recently released a great guide for journalists, and the Centre for Investigative Journalism just released a report that is particularly good on hardware issues.

The current approaches cover fantastic ground. But based on my experience doing fieldwork, and training lawyers and journalists in security, things need to be simplified even further. Security is a skill, and it is one that is learned by application. I’m reminded of my time studying math; I wouldn’t read a 50-60 page textbook about theory and then take a final exam. I would work through problems, and learn concepts step-by-step.

I think security should be approached similarly. People are busy. Especially in human rights, they are overworked. And those who have the time and dedication to acquire resources are confused.

I plan to post examples of different security situations that would be relevant for different practitioners. In doing so it can hopefully serve as a resource to those facing specific risks in a variety of fields.

 

 

Resources for CHR&GJ Security for Human Rights Lawyers Workshop

July 14, 2014, Carey Shenkman0 Comments

This is designed to be a supplement to a lunchtime presentation given at NYU’s Center for Human Rights & Global Justice on July 15. While these resources are not exhaustive, they are designed to be an introduction to important and high-priority tools any human rights lawyer should be familiar with.

Encryption for PC:

Thunderbird — https://www.mozilla.org/en-US/thunderbird/

Enigmail — https://addons.mozilla.org/en-us/thunderbird/addon/enigmail/

Quick start guide — https://www.enigmail.net/documentation/quickstart.php

Encryption for Mac:

GPG Tools — https://gpgtools.org/

Quick start guide — http://support.gpgtools.org/kb/how-to/first-steps-where-do-i-start-where-do-i-begin

Download Carey’s public key here

TOR Browser:

https://www.torproject.org/projects/torbrowser.html.en

Carey’s PGP Key

February 9, 2014, Carey Shenkman0 Comments

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Useful Resources for First Amendment and Privacy (Ongoing)

October 6, 2013, Carey Shenkman0 Comments

This post is intended to be a continuously updated repository of recommended resources and reading.

MOBILE/ PRIVACY:

Because Android has a greater worldwide market share than iOS, it is generally easier to find Android apps. However, many of these resources do have alternatives on iOS that may not require jailbreaking your device.

***PHENOMENAL RESOURCE CATALOGUING ANTI-SURVEILLANCE MEASURES YOU CAN TAKE*** : http://prism-break.org/

Some highlights – thanks to the amazing work of the Guardian Project on several of these apps:

Secure Browsing: TOR (Orbot, service) + Orweb (browser once TOR is activated)

Encrypted calls: Ostel + Linphone (Ostel.co).

Encrypted IMing:  Cryptocat (browser),  Gibberbot (secure OTR [off-the-record] messaging for Android)

Private search:  DuckDuckGo.com

The Press Clause As Explained by Supreme Court Chief Justice Warren Burger

September 15, 2013, Carey Shenkman0 Comments

In light of the recent view by Congress that it gets to decide who is and isn’t press, I dug up one of my favorite passages elucidating the little-understood “press clause” of the First Amendment. Courtesy of Cornell LII.

This excerpt is taken from Chief Justice Warren Burger’s concurrence in First National Bank of Boston v. Bellotti, 435 U.S. 765 (1978):

I perceive two fundamental difficulties with a narrow reading of the Press Clause. First, although certainty on this point is not possible, the history of the Clause does not suggest that the authors contemplated a “special” or “institutional” privilege. See Lange, The Speech and Press Clauses, 23 UCLA L.Rev. 77, 88-99 (1975). The common 18th century understanding of freedom of the press is suggested by Andrew Bradford, a colonial American newspaperman. In defining the nature of the liberty, he did not limit it to a particular group:

“But, by the Freedom of the Press, I mean a Liberty, within the Bounds of Law, for any Man to communicate to the Public, his Sentiments on the Important Points of Religion and Government ; of proposing any Laws, which he apprehends may be for the Good of his Countrey, and of applying for the Repeal of such, as he Judges pernicious. . . .

“This is the Liberty of the Press, the great Palladium of all our other Liberties, which I hope the good People of this Province, will forever enjoy . . ..” A. Bradford, Sentiments on the Liberty of the Press, in L. Levy, Freedom of the Press from Zenger to Jefferson 41-42 (1966) (emphasis deleted) (first published in Bradford’s The American Weekly Mercury, a Philadelphia newspaper, Apr. 25, 1734).

Indeed most pre-First Amendment commentators “who employed the term ‘freedom of speech’ with great frequency, used it synonomously with freedom of the press.” L. Levy, Legacy of Suppression: Freedom of Speech and Press in Early American History 174 (1960).

Those interpreting the Press Clause as extending protection only to, or creating a special role for, the “institutional press” must either (a) assert such an intention on the part of the Framers for which no supporting evidence is available, cf. Lange, supra, at 89-91; (b) argue that events after 1791 somehow operated to “constitutionalize” this interpretation, see Bezanson, supra n. 3, at 788; or (c) candidly acknowledging the absence of historical support, suggest that the intent of the Framers is not important today. See Nimmer, supra n. 3, at 640-641.

To conclude that the Framers did not intend to limit the freedom of the press to one select group is not necessarily to suggest that the Press Clause is redundant. The Speech Clause standing alone may be viewed as a protection of the liberty to express ideas and beliefs, 4while the Press Clause focuses specifically on the liberty to disseminate expression broadly and “comprehends every sort of publication which affords a vehicle of information and opinion.” Lovell v. Griffin, 303 U.S. 444 452, 58 S.Ct. 666, 669, 82 L.Ed. 949 (1938). 5Yet there is no fundamental distinction between expression and dissemination. The liberty encompassed by the Press Clause, although complementary to and a natural extension of Speech Clause liberty, merited special mention simply because it had been more often the object of official restraints. Soon after the invention of the printing press, English and continental monarchs, fearful of the power implicit in its use and the threat to Establishment thought and order—political and religious—devised restraints, such as licensing, censors, indices of prohibited books, and prosecutions for seditious libel, which generally were unknown in the pre-printing press era. Official restrictions were the official response to the new, disquieting idea that this invention would provide a means for mass communication.

The second fundamental difficulty with interpreting the Press Clause as conferring special status on a limited group is one of definition. See Lange,supra, at 100-107. The very task of including some entities within the “institutional press” while excluding others, whether undertaken by legislature, court, or administrative agency, is reminiscent of the abhorred licensing system of Tudor and Stuart England—a system the First Amendment was intended to ban from this country. Lovell v. Griffin, supra, 303 U.S., at 451-452, 58 S.Ct., at 668-669. Further, the officials undertaking that task would be required to distinguish the protected from the unprotected on the basis of such variables as content of expression, frequency or fervor of expression, or ownership of the technological means of dissemination. Yet nothing in this Court’s opinions supports such a confining approach to the scope of Press Clause protection. 6 Indeed, the Court has plainly intimated the contrary view:

“Freedom o the press is a ‘fundamental personal right’ which ‘is not confined to newspapers and periodicals. It necessarily embraces pamphlets and leaflets . . .. The press in its historic connotation comprehends every sort of publication which affords a vehicle of information and opinion.’ . . . The informative function asserted by representatives of the organized press . . . is also performed by lecturers, political pollsters, novelists, academic researchers, and dramatists. Almost any author may quite accurately assert that he is contributing to the flow of information to the public . . ..” Branzburg v. Hayes, 408 U.S. 665, 704-705, 92 S.Ct. 2646, 2668, 33 L.Ed.2d 626 (1972), quoting Lovell v. Griffin, supra, 303 U.S., at 450, 452, 58 S.Ct., at 668, 669.

The meaning of the Press Clause, as a provision separate and apart from the Speech Clause, is implicated only indirectly by this case. Yet Massachusetts’ position poses serious questions. The evolution of traditional newspapers into modern corporate conglomerates in which the daily dissemination of news by print is no longer the major part of the whole enterprise suggests the need for caution in limiting the First Amendment rights of corporations as such. Thus, the tentative probings of this brief inquiry are wholly consistent, I think, with the Court’s refusal to sustain § 8’s serious and potentially dangerous restriction on the freedom of political speech.

Because the First Amendment was meant to guarantee freedom to express and communicate ideas, I can see no difference between the right of those who seek to disseminate ideas by way of a newspaper and those who give lectures or speeches and seek to enlarge the audience by publication and wide dissemination. “The purpose of the Constitution was not to erect the press into a privileged institution but to protect all persons in their right to print what they will as well as to utter it. ‘ . . . the liberty of the press is no greater and no less . . .’ than the liberty of every citizen of the Republic.” Pennekamp v. Florida, 328 U.S. 331, 364, 66 S.Ct. 1029, 1046, 90 L.Ed. 1295 (1946)(Frankfurter, J., concurring).

In short, the First Amendment does not “belong” to any definable category of persons or entities: It belongs to all who exercise its freedoms.

The advent of the Internet, a hobbyist’s enterprise at the time of the opinion, has made these issues more difficult. But more than thirty years ago Chief Justice Burger articulated the essence of the same debate we are having today.

Excellent Article on NSA Spying and How the Media Describes It Completely Wrong

September 7, 2013, Carey Shenkman0 Comments

Today I came across a very good article by Matthew Green, a professor a Johns Hopkins. Christopher Soghoian of the ACLU called this the one article to read and I absolutely agree.

It was just revealed by ProPublica, The Guardian, and The New York Times that the NSA has been ‘defeating’ encryption measures. For a techspeak layman that means the NSA is peeking through windows on the Internet that were thought to be drawn and locked. Mainstream media have overwhelming reported this as “breaking” cryptography. But this description is seriously misleading, since it is close to mathematically impossible to ‘break’ cryptography in the sense they mean (cracking the cryptography itself using pure brute force).

Instead, a better description is that the NSA is ‘cheating’ via backdoors and other methods to tilt the odds of cracking encryption in their favor. Professor Green accurately qualifies what ‘breaking’ cryptography means:

“Readers of this blog should know that there are basically three ways to break a cryptographic system. In no particular order, they are:

  1. Attack the cryptography. This is difficult and unlikely to work against the standard algorithms we use (though there are exceptions like RC4.) However there are many complex protocols in cryptography, and sometimes they are vulnerable.
  2. Go after the implementation. Cryptography is almost always implemented in software — and software is a disaster. Hardware isn’t that much better. Unfortunately active software exploits only work if you have a target in mind. If your goal is mass surveillance, you need to build insecurity in from the start. That means working with vendors to add backdoors.
  3. Access the human side. Why hack someone’s computer if you can get them to give you the key?

Bruce Schneier, who has seen the documents, says that ‘math is good’, but that ‘code has been subverted’. He also says that the NSA is ‘cheating‘. Which, assuming we can trust these documents, is a huge sigh of relief. But it also means we’re seeing a lot of (2) and (3)here.”

So, it has more to do with the NSA working with providers to sabotage the encryption. Locked windows that one can unscrew from the outside, or a backdoor to the inside, if you will. Professor Green goes on to describe some of the ways that the NSA could be “cheating” the system:

“If you haven’t read the NYT or Guardian stories, you probably should. The TL;DR is that the NSA has been doing some very bad things. At a combined cost of $250 million per year, they include:

  1. Tampering with national standards (NIST is specifically mentioned) to promote weak, or otherwise vulnerable cryptography.
  2. Influencing standards committees to weaken protocols.
  3. Working with hardware and software vendors to weaken encryption and random number generators.
  4. Attacking the encryption used by ‘the next generation of 4G phones‘.
  5. Obtaining cleartext access to ‘a major internet peer-to-peer voice and text communications system’ (Skype?)
  6. Identifying and cracking vulnerable keys.
  7. Establishing a Human Intelligence division to infiltrate the global telecommunications industry.
  8. And worst of all (to me): somehow decrypting SSL connections.”

These revelations are already leading to an air of distrust in the security industry, as Professor Green predicted. Consider that today Google began accelerating its encryption of data traveling between its data centers.

Fortunately, companies like Google have identified that the NSA’s measures undermine their brand’s credibility abroad and run against the underpinnings of the Internet. It will be important over the next several days to look at what other players in the tech industry can become unanticipated allies to digital civil liberties activists.