DHS Attacks Constitutional Right to Anonymity

Anonymous political speech has a special place in American history.

As leading economic blogger Tyler Durden points out:

Anonymity is a shield from the tyranny of the majority. it thus exemplifies the purpose behind the bill of rights, and of the first amendment in particular: to protect unpopular individuals from retaliation– and their ideas from suppression– at the hand of an intolerant society.

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Though often maligned (typically by those frustrated by an inability to engage in ad hominem attacks) anonymous speech has a long and storied history in the United States. Used by the likes of Mark Twain (aka Samuel Langhorne Clemens) [and the founding fathers in the Federalist Papers], we think ourselves in good company in using one or another nom de plume. Particularly in light of an emerging trend against vocalizing public dissent in the Uunited States, we believe in the critical importance of anonymity and its role in dissident speech. like the Economist magazine, we also believe that keeping authorship anonymous moves the focus of discussion to the content of speech and away from the speaker- as it should be.

But DHS is shredding anonymity.

Gene Howington provides details in a must-read essay:

Do you have a right to anonymous political free speech?

According to the Supreme Court, you do. According to the Department of Homeland Security, you don’t. They’ve hired General Dynamics to track U.S. citizens exercising this critical civil right.

The history of anonymous political free speech in America dates back to our founding. The seminal essays found in “The Federalist Papers” were written by Alexander Hamilton, James Madison and John Jay under the nom de plume of “Publius” although this was not confirmed until a list of authorship complied by Hamilton was posthumously released to the public. As previously discussed on this blog, the right to anonymous political free speech has been addressed by the Supreme Court. Most notably in the cases of Talley v. California, 362 U.S. 60 (1960) and McIntyre v. Ohio Elections Commission, 514 U.S. 334 (1995). In Talley, Justice Hugo Black writing for the majority said that, “Anonymous pamphlets, leaflets, brochures and even books have played an important role in the progress of mankind. Persecuted groups and sects from time to time throughout history have been able to criticize oppressive practices and laws either anonymously or not at all.” In McIntyre, Justice John Paul Stevens writing for the majority said that, “Anonymity is a shield from the tyranny of the majority. [… ] an author’s decision to remain anonymous, like other decisions concerning omissions or additions to the content of a publication, is an aspect of the freedom of speech protected by the First Amendment.” That seems clear enough in defining that citizens do have a Constitutionally protected right to anonymous political free speech.

The full DHS policy statement regarding its activities can be viewed in the DHS Privacy Compliance Review of the NOC Media Monitoring Initiative (November 15, 2011), but rt.com’s summary spells out the basics:

“Under the National Operations Center (NOC)’s Media Monitoring Initiative that came out of DHS headquarters in November, Washington has the written permission to retain data on users of social media and online networking platforms.

Specifically, the DHS announced the NCO and its Office of Operations Coordination and Planning (OPS) can collect personal information from news anchors, journalists, reporters or anyone who may use “traditional and/or social media in real time to keep their audience situationally aware and informed.”

According to the Department of Homeland Security’s own definition of personal identifiable information, or PII, such data could consist of any intellect “that permits the identity of an individual to be directly or indirectly inferred, including any information which is linked or linkable to that individual.” Previously established guidelines within the administration say that data could only be collected under authorization set forth by written code, but the new provisions in the NOC’s write-up means that any reporter, whether someone along the lines of Walter Cronkite or a budding blogger, can be victimized by the agency.

Also included in the roster of those subjected to the spying are government officials, domestic or not, who make public statements, private sector employees that do the same and “persons known to have been involved in major crimes of Homeland Security interest,” which to itself opens up the possibilities even wider.

The department says that they will only scour publically-made info available while retaining data, but it doesn’t help but raise suspicion as to why the government is going out of their way to spend time, money and resources on watching over those that helped bring news to the masses.” – rt.com

This question about the right to anonymous political free speech is also asked over the background of the Electronic Privacy Information Center filing a FOIA request against the DHS to find out the details of the agency’s social network monitoring program.

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As part of recent disclosures related to the EPIC suit, it is revealed that the DHS has hired and instructed General Dynamics to monitor political dissent and the dissenters. The range of websites listed as being monitored is quite impressive. Notably, jonathanturley.org is not on this list [Howington's essay is a guest blog on constitutional law professor Jonathan Turley's website], but equally of note is that this list is by the DHS’ own admission “representative” and not “comprehensive”.

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Some of the more high profile and highly trafficked sites being monitored include the comments sections of The New York Times, The Los Angeles Times, Newsweek, the Huffington Post, the Drudge Report, Wired, and ABC News. In addition, social networking sites Facebook, MySpace and Twitter are being monitored. For the first time, the public not only has an idea who the DHS is pursuing with their surveillance and where, but what they are looking for as well. General Dynamics contract requires them to “[identify] media reports that reflect adversely on the U.S. Government, DHS, or prevent, protect, respond government activities.” The DHS also instructed General Dynamics to generate “reports on DHS, Components, and other Federal Agencies: positive and negative reports on FEMA, CIA, CBP, ICE, etc. as well as organizations outside the DHS.” In other words, the DHS wants to know who you are if you say anything critical about the government.

Anybody thinking of the name “Goebbels” at this point is not out of line.

Nothing To Do With Security

This has nothing at all to do with keeping us safe:

  • Remember, widespread spying on Americans began before 9/11.

Category: Think Tank

Please use the comments to demonstrate your own ignorance, unfamiliarity with empirical data and lack of respect for scientific knowledge. Be sure to create straw men and argue against things I have neither said nor implied. If you could repeat previously discredited memes or steer the conversation into irrelevant, off topic discussions, it would be appreciated. Lastly, kindly forgo all civility in your discourse . . . you are, after all, anonymous.

4 Responses to “Homeland Security Shreds Constitutional Right to Anonymous Political Speech – Not to Protect Our Security – But to Monitor Dissent”

  1. Expat says:

    The DHS is the bestest organization in the world and is doing this for our own good at great sacrifice to themselves. (Wink Wink)
    I live abroad but am still worried when I criticize the US because I occasionally return to the States. I expect to be stopped by DHS one of those times and questioned about my Un-American Activities on the intertubes!

    but, what the heck! Is War good? Can Ron Paul stop pollution? Should we use our gold stocks to buy guns and seven days of food in order to fight for liberty in the name of combating Wall Street and the DHS?

  2. molten_tofu says:

    While the concerns are real, this particular attempt on the DHS’s part to monitor online commentary is a flat out joke. “The range of websites listed as being monitored is quite impressive” is lol-worthy, and the price tag General Dynamics is quoting DHS is literally 1,000 times higher, give or take, compared to the market rate for these kinds of services. Finally, I’ve had a chance to review the reports DHS is receiving and they’re pretty much copy / paste hack jobs.

    You should know I have no love for centralized policing, and I work in an industry close to the services discussed. Practically anything DHS does is inherently creepy because it’s an organization based on a creepy premise. Frankly, though, what annoys me the most about this is the blatant waste of taxpayer dollars for a crappy product. It’s like the requisitions person just called up GD, GD was like “yeah sure we do that”, then took the conversation offline and it went something like this: “We build tanks, so who knows why they are asking us to do this… lets charge them 4 tanks per year”.

    And if you think you have a reasonable expectation of anonymity on the internet without taking informed precautions, you are a sucker and you don’t know how the internet works. I post under a pseudonym because it helps me feel free enough to call people “suckers”, but it would take about 10 minutes of research (TOPS) to figure out who I really am.

    Disclaimer – what I’m talking about here is the aggregation and analysis of publicly available information on the net, NOT hacking emails and Facebook to reveal content which has been expressly deemed “private” and protected as such using passwords and encryption. Were the DHS to embark on a project like this, it would definitely be a blatant police state action.

  3. bonzo says:

    Things were worse in the past, you know. Americans who merely questioned involvement in WWI were thrown into jail, lost their citizenship, sentenced to death (few of these sentences were carried out, however): http://en.wikipedia.org/wiki/Opposition_to_World_War_I#In_the_United_States

    Things became more liberalized after WWI. I suspect things will get more liberalized here after the United States is forced to cut back on its empire for cost reasons, inflation rears up, we see lots of problems with returning veterans (such as that ex-marine thrill killer: http://news.yahoo.com/prosecutors-veteran-killed-homeless-thrill-195923650.html), Republicans turn from idolizing the military to blaming it for high taxes, etc. There is going to eventually be a revulsion against militarism, just as their we are currently undergoing a revulsion against debt, and there has been a multi-decade revulsion against big government. The revulsion against big government, which started in the 1970′s, hasn’t made much headway because we haven’t had strong inflation, so the government could both spend and cut taxes at the same time, and made ends meet by running up debt. But the days of running up government debt will be coming to an end at some point, once the boomers start to retire en masse.

  4. some dude breaks with..”…and I work in an industry close to the services discussed…”

    then..”…Disclaimer – what I’m talking about here is the aggregation and analysis of publicly available information on the net, NOT hacking emails and Facebook to reveal content which has been expressly deemed “private” and protected as such using passwords and encryption. Were the DHS to embark on a project like this, it would definitely be a blatant police state action…”

    esp.”…Were the DHS to embark on a project like this, it would definitely be a blatant police state action…”

    riight..

    no mention of http://search.yippy.com/search?input-form=clusty-simple&v%3Asources=webplus-ns-aaf&v%3Aproject=clusty&query=Main+Core+Carnivore+Total+Information+Awareness

    to begin with(?)

    + “…An overview of the NSA’s domestic spying program
    By Jon Stokes | Published 3 years ago

    In Wednesday’s Wall Street Journal, Siobhan Gorman pulled together the disparate threads of reporting on what’s known of the NSA’s secret domestic spy program, and combined them with some of her own reporting to confirm, once again, that the NSA’s program is another incarnation of the Pentagon’s erstwhile Total Information Awareness program. Gorman also describes how Carnivore, the SWIFT database snooping program, and basically every other “Big Brother” database and data snooping program that the executive branch has developed over the past two administrations* feed information into the NSA’s TIA-like system, which then looks for suspicious patterns in the data.

    Gorman’s article provides a great overview of how these programs fit together in the architecture of the modern, post-9/11 surveillance state, and it’s required reading because it comes at a critical time in our national debate about privacy and the limits of executive power. However, if you’ve been following this topic closely then you know that most of the information in the article has been public since 2006.

    In this post, I’m going to walk back through some of the previous reporting on the topic, both my own work and that of others, and offer corrections and adjustments where necessary based on the WSJ piece. My hope is that readers and reporters who are so inclined can dig through the details and links and follow up on any leads that others may have missed.

    (*Note: Infamous codenames like “Carnivore” and ECHELON first cropped up in Bill Clinton’s second term, and I covered them when Ars launched in mid-1998. In terms of the presidential orders he signed and the programs that were inaugurated on his watch, Clinton laid some of the groundwork for the Bush administration’s pre- and post-9/11 surveillance-related lawbreaking. Or, perhaps a more accurate metaphor is that he blazed a trail that the Bush gang then paved over and turned into a six-lane highway.)
    A look back at the role of the TIA in the NSA’s surveillance activities…”
    http://arstechnica.com/security/news/2008/03/an-overview-of-the-nsas-domestic-spying-program.ars