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Balancing the Public Interest in Disclosures

On Monday, Marc Theissen had an opinion piece in the Washington Post taking The New York Times to task for publishing the details of the NSA’s capabilities of using radio frequencies to infiltrate computers and computer networks around the world, even when these systems are not connected to the network.  In the story, The Times reports that “[t]here is no evidence that the NSA has implanted its software or used its radio frequency inside the United States,” and  the NSA has also confirmed that its “activities are focused and specifically deployed against–and only against–valid foreign intelligence targets.”   On this basis, Theissen argues:

“In other words, this (no longer) secret program poses precisely zero threat to American civil liberties. So what is the redeeming social value of the Times’ story? What “abuse” is being revealed? Why is this something the public needs to know? The answers are: None. None. And it isn’t. Before this disclosure, terrorists believed that if they did not connect to the Internet, they were “off the grid” and out of range of NSA surveillance. Now they know that is not true. As a result they can take countermeasures — and stop using the offline computers the NSA was monitoring — which means we will lose access to vital streams of intelligence we needed to prevent an attack.

Theissan’s argument, however, suffers from two flaws, the first of which is more of a quibble, but it sets up the second more fundamental issue with his analysis.  First, it is almost obviously not the case that there is no redeeming social value to the public disclosure of the NSA’s capabilities.  From the 30,000 ft-perspective, given the national debate surrounding the United States’ surveillance capabilities in a post-Snowden world, the public having greater information about what the NSA does do and does not do may serve to enhance the democratic dialogue, which is certainly in the public’s legitimate interest. More specifically, as we have previously discussed, given the broad interpretation given to “foreign intelligence information,” even if–as the NSA has confirmed–the capabilities have been deployed only against valid foreign intelligence targets, it is far from clear that the program poses no threat to American civil liberties.

That brings me to my second, more fundamental, issue with Theissan’s analysis.  Having very quickly and dismissively concluded that there is zero, zilch, nada, no public interest in the disclosed information, he determines that this story, and others that have come before it, “serve no greater social purpose other than to titillate.”  However, by ignoring that there is in fact at least some public interest in the disclosure of the information, he misses the more nuanced and important question: what is the appropriate balance that must be struck between two competing and legitimate interests: (i) government transparency in a free, democratic society and (ii) protection of sources and (in this case) methods of intelligence gathering so that the government’s legitimate security aims are not compromised.  By missing or ignoring that competing interests exist, Theissan discredits the tough and taxing determinations made by members of the press each day.

According to Ben Wizner of the ACLU and Edward Snowden’s attorney, the media outlets publishing documents revealed by Snowden are actively engaged in attempting to strike the appropriate balance between transparency and necessary secrecy, in consultation with the government, before each story is published.  And presumably, The New York Times engaged in balancing these competing priorities here.  However, by glossing over the interest in public disclosure, Theissan ignores that this balancing is indeed taking place and that media outlets have, rightly or wrongly, determined that the legitimate interest in public disclosure outweighs the legitimate government interest in secrecy.

One could agree with Theissan that The New York Times erred on the side of over-disclosure in this instance (as I think I might) without having to summarily dismiss the notion that there are at least some legitimate competing interests in public disclosure.  However, by speaking only to the damage potentially caused by the Snowden leaks (or a given story) without acknowledging their potential social value, Theissan (as have others before him) fails to truly address the complexity of the competing interests at stake or to recognize the value of the democratic debate that has unfolded over the last seven months.

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About the Author

Former Managing Editor of Just Security (2013-14) Follow him on Twitter (@thomasdearnest).