No Matter Who Wins Tonight, Privacy Rights Have Already Lost

In this political knife-fight that we’re calling an election, nuanced policy discussions have become an afterthought. In particular, the public discourse on privacy and state surveillance is in danger of dropping completely out of the public eye. For the most part, national conversations about privacy policy have been sidelined by political character attacks, intrigue, and near daily reports of various hacks, leaks, and gaffes. Unlike discussions about the Obama administration’s use of drones, most of the privacy discourse has revolved around how WikiLeaks has used targeted leaks to damage the reputations of politicians and those civilians who run their campaigns. Along with with WikiLeaks’ subjective and vindictive criteria for determining who deserves to lose privacy, we are seeing a deeply disturbing trend of privacy being lost not just to governments, but malicious non-state actors as well. This is not just an American concern: privacy rights the world over are in peril. As the line between public and private citizens and their respective rights to keep secrets is blurred, it is becoming increasingly clear that online privacy rights are no longer a given.

Three years after the Snowden leaks revealed a complex global network of electronic surveillance led by the NSA, privacy rights have transformed from a fringe concern to a voting issue that most American voters are at least aware of. However, public disapproval of these programs’ invasiveness has not materialized into political action. Voter knowledge and concern varies; a January 2015 poll from Pew Research found that only 52% of Americans are ‘very’ to ‘somewhat’ concerned about government surveillance - more than the 46% who are ‘not very’ to ‘not at all’ concerned. The same poll also found that almost half (47%) of Americans admit to being confused about what exactly the government does after collecting their data. This combination of scattered concern, confusion over details, and generalized outrage is the perfect storm for the kind of uncritical paranoia that headline-driven media thrives on.

Despite the role leaked information has played in media headlines this election, scant attention has been paid to the candidates’ positions on privacy rights. Trump’s only statements regarding privacy issues, like encryption and ‘the cyber’, have been ad hoc responses to criticisms of his campaign and reactions to headline controversies. The few specifics he has mentioned include ‘opening up’ libel laws, working with Bill Gates to find a way to ‘shut down the internet’ to fight ISIS, and boycotting Apple after the company refused to break the encryption on the San Bernardino shooter’s iPhone. Though he loudly relishes each new Clinton email release, all it would take is the leaking of one of his tax returns to turn his enthusiasm into outrage. These positions are consistent with Trump’s fixation on personal revenge - and considering his litigious past, it is not difficult to picture him using the powers of the presidency to crack down on the privacy rights of his enemies.

While Clinton’s proposals are unsurprisingly more concrete, many of her suggestions are similarly hostile to privacy rights, particularly her vague but ominous call during the Democratic primary for a ‘Manhattan-like project’ to break encryption. It is likely a Clinton presidency will echo the Obama administration in a few respects, as the lack of any pertinent discussion of privacy issues creates a kind of fog in which state agencies are given a blank cheque, and often at the expense of citizens. That could entail a continuation of the administration’s crackdown on whistleblowers and journalists, which included using the 1917 Espionage Act more often than all previous administrations combined.

Though legacy news outlets like The New York Times and The Atlantic have published articles highlighting the lack of genuine controversies in the leaks, there has been little concern raised over the fact that the leaks represent a grievous violation of individual citizens’ privacy rights. Nor has there been concern over the fact that there is little evidence to suggest that government electronic surveillance programs like Clinton calls for actually help prevent terror attacks.

Before the FBI director’s unprecedented letter to congress last week announcing that new materials related to the Clinton email investigation are being examined in connection to the Anthony Weiner case, the recent leaks had largely consisted of emails between John Podesta, Clinton’s campaign chairman, and other high-ranking campaign staffers. The leaked emails contain little in the way of scandal, in the sense of either criminal activity or deception. They are, however, rife with the sorts of things that are jokes or half-serious when said in private, but become gaffes in public - including Podesta calling Bernie Sanders a ‘doofus’ back in December 2015. Embarrassing, yes, but these kinds of remarks hardly qualify as leaks in the public interest. Similarly, the New York Times’ decision to publish part of Donald Trump’s 1995 tax return is information that the public and media outlets desire, but which they have no real right to demand or steal (Trump is under no legal obligation to release his returns, though that may change if he is charged for illegally conducting business in Cuba in 1998). These releases contrast sharply with the way that legacy media - like the Times - warily approached leaked information in the past.

Thirty-five years before the establishment of WikiLeaks, the New York Times published excerpts from a top-secret report. Titled "United States – Vietnam Relations, 1945–1967: A Study Prepared by the Department of Defense" it was their front page on June 13, 1971. These documents, later dubbed the “Pentagon Papers”, revealed a number of disturbing truths about the Vietnam War that the public was ignorant of. This included secret bombing campaigns conducted by the Johnson administration in Laos and Cambodia. Then-President Nixon filed an injunction against the Times, arguing that the whistleblower who leaked the documents - a former military analyst named Daniel Ellsberg who worked on part of the original report - had violated the 1917 Espionage Act. The Times took the administration’s challenge all the way to the Supreme Court, and won.

Though both candidates want to win public office, they are currently private citizens. As activist Naomi Klein observed in a recent conversation with Glenn Greenwald, the blurring of the lines between public and private communications sets a troubling precedent for anyone who corresponds online. If the standard for loss of privacy is merely being considered a powerful person, Klein notes, then many journalists should worry about their own private communications being exposed in the near future. The criteria is entirely subjective, with decision-making power increasingly in the hands of those like Julian Assange, and can easily be used to rationalize invading the lives of private citizens. To be clear, many private citizens can and do wield immense political power in the United States: tech billionaire Peter Thiel this year used his wealth to bankroll a lawsuit that decimated Gawker Media. But however ethically questionable, the power conferred by the legal use of wealth or influence is not comparable to the power conferred by winning an election or rising through the ranks of public bureaucracy. Those who choose to serve in the public sector - from the lowliest junior aid the most esteemed Chief Justice - accept that their actions are part of the public record, and that the public can demand access to those records. Private citizens, even those who work as political activists or lobby representatives, have no such obligation to record or disclose their actions to the public unless they fall under criminal investigation.

Referencing the Nixon administration’s central claim that grave threats to national security give the executive branch authority to censor the press, Supreme Court Justice Black wrote:

"[t]he word "security" is a broad, vague generality whose contours should not be invoked to abrogate the fundamental law embodied in the First Amendment. The guarding of military and diplomatic secrets at the expense of informed representative government provides no real security for our Republic."

This impassioned defence of the supremacy of the First Amendment could be reasonably applied to much of WikiLeaks’ initial reporting. Their release of classified documents related to the Iraq War echoed the Pentagon Papers decades earlier. The leak genuinely educated the public about governmental misconduct and potential criminality by exposing the problematic use of private military contractors and revealing potential war crimes.

The same cannot be said for leaks revealing that Clinton’s campaign chairman called her primary opponent ‘a doofus’. Thanks to the change in media focus, power over privacy rights in this election has shifted over to hackers and a non-American, non-governmental organization. And in releasing Clinton emails that cannot be reasonably said to pose a grave threat to national security, WikiLeaks threatened something they claim to support: the privacy rights of regular citizens.

Reid Marcus

Reid studies International Relations and Political Science at UBC. His main interests are far-right hate groups, political media, and the history of terrorism.

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