By Rosanna Cavanagh
Have you noticed lately that it seems we are taking a trip down the rabbit hole when it comes to citizen privacy versus the public’s right to know?
The new norm has become that we citizens have no reasonable expectation of privacy (witness the NSA’s amassing of warehouses of information about us) but the government that we elect and support with our tax dollars has every expectation of privacy and shutting the public out has become the new norm (see the recent report by the international group, the Committee to Protect Journalists). Is this the way a democratic society is supposed to function or have we somehow landed in Alice in Wonderland where everything is flabberghastingly backwards? Shouldn’t private citizens have some legitimate expectation of privacy and the government behave in a more open and transparent way?
The New England First Amendment Coalition recently joined 38 other groups, including The Associated Press and the White House News Photographers Association, in the latest challenge to this disturbing trend of the diminishing public view, calling on the White House Press Secretary, Jay Carney, to improve their policy towards photojournalists who are continually being denied access to photograph or videotape the President while he is performing seemingly official functions at the White House.
“As surely as if they were placing a hand over a journalist’s camera lens, officials in this administration are blocking the public from having an independent view of important functions of the executive Branch of government,” the letter protests. Meanwhile, the White House has taken to releasing its own photographs of the “private” events on social media, undercutting the contention that the event should be deemed private after all.
These actions raise real constitutional concerns. As the letter argues, the First Amendment protects “’the public and the press from abridgment of their rights of access to information about the operation of their government.’” (Richmond Newspapers Inc. v. Virginia) Another Supreme Court case, Press Enterprise II, considers the proper standards for closure of government functions to the public and considers two factors: 1) “whether the place and process have historically been open to the press and general public” and 2) “whether public access plays a significant positive role in the functioning of the particular process in question.” If the court finds a qualified right, the government may overcome that right only by demonstrating “an overriding interest based on findings that closure is essential to preserve higher values and is narrowly tailored to serve that interest.” It seems that by breaking with how previous administrations have dealt with White House press access, the administration would run afoul of these standards.
As disturbing as it is, the restriction of photojournalists from the White House is only one factor in the diminishing public view. As the Special Report on “The Obama Administration and the Press” by the Committee to Protect Journalists outlined, “[i]n the Obama administration’s Washington, government officials are increasingly afraid to talk to the press.” This stems from the fact that the administration has undertaken an unprecedented effort to crack down on leakers; eight government employees or contractors have been the subject of felony criminal prosecutions under the 1917 Espionage Act during the Obama administration, which is three times the amount of all previous administrations. Another factor in the changed relationship between the government and the media is the implementation of an “Insider Threat Program” which requires all federal employees to help prevent unauthorized disclosures of information by reporting on their own colleagues if they suspect such behavior. The report quotes Washington Post national security reporter Rajiv Chandrasekaran, as saying that “one of the most pernicious effects is the chilling effect created across government on matters that are less sensitive but certainly in the public interest as a check on government and elected officials. It serves to shield and obscure the business of government from necessary accountability.”
Meanwhile on the other side of the coin, we United States citizens can no longer live in an ignorance is bliss state, thinking we have a modicum of privacy. The Wall Street Journal reports that NSA’s monitoring of Americans includes “customer records from the three major phone networks as well as emails and Web searches” and credit-card transactions. Every time an American makes or receives a call the government is collecting information on to and from whom and how long the call takes. The information collected also contains who we are emailing and what we are purchasing by credit card.
And we know that the privacy of news organizations are particularly being targeted by multiple government departments. Witness the massive dragnet of a subpoenas from the Justice Department to The Associated Press cellular, office and home telephone records of individual Associated Press reporters and editors in Washington, New York, and Hartford, Conn., as well as the main number for AP reporters covering Congress. Using the phone records, the Justice Department extracted a guilty plea from Donald J. Sachtleben, a former FBI bomb technician working as a contractor for the bureau, for “unlawfully disclosing national defense information relating to a disrupted terrorist plot” in Yemen. Sachtleben agreed to a 43-month prison sentence in the leak case. This coupled with the new precedent of prosecuting members of the press such as James Rosen as “aiders and abettors” of leaks, should send chills down all of our spines.
So let’s remember why this is happening. The Patriot Act, an effort to respond to 9/11 terrorist attacks by making America safer has paved the way to all of these disturbing trends by getting rid of all of those annoying and outdated protections on our freedom and privacy, allowing expanded domestic surveillance activities. Yet, sadly, the very officials who wish to spare America another attack have instead allowed our enemies to add another 317 million names to their list of victims. Yes, all of us living here in the United States become their victims when our freedom is diminished as a result of our government’s response to their actions. Our own President feared this trend as a Senator giving a speech on the Senate floor in 2005 calling the Patriot Act “just plain wrong” and criticizing how it put the “Justice Department above the law.” I would hope he could again be persuaded to see this folly and take the hand off the camera lens and the vice grip off government officials who would seek to talk to the press. Letting the photojournalists back into the White House and passing a federal shield bill for reporters would be good first steps in reversing this trend.
Mr. President, please put some substance behind your promise to lead the most open and transparent administration in U.S. history.
Rosanna is executive director of the New England First Amendment Coalition.