Edward Snowden

Last night, I attended a talk given by Heidi Boghosian, executive director of the National Lawyers Guild, in support of a book, Spying on Democracy: Government Surveillance, Corporate Power, and Public Resistance, she wrote before Edward Snowden leaked so many of the surveillance secrets of the United States.

Boghosian pointed out that Americans are not just being monitored by governmental officials but by “its corporate partners.”

Popular support for surveillance skyrocketed after September 11-- the most severe attack ever on American mainland soil, she says.

That proved to be a benefit for the security industry, Boghosian says.

“My main critique in the book is that big business benefits from this,” Boghosian said, and “that there's a revolving door” between people who work in government and people who work in the private sector. For example, many ex-generals work in the security industry after retiring from the military, Boghosian said.

And many, many intelligence functions are contracted out to the private industry, she says. Snowden was a private contractor no less.

Boghosian is concerned that “profit comes before human rights and the Constitution.”

The biggest issue from collecting all of this metadata about people is the long-term storage of it, Boghosian said. Who stores the data? Who gets to control it? Who can access medical records, financial records or information about political activism?

“It seems this country is literally in a race to collect as much data on each of us that it can and store it for indeterminate periods of time,” Boghosian said.

Boghosian also specified concerns about the possibility of groups like the ACLU and the Center on Constitutional Rights having attorney-client privilege breached with their clients through surveillance. She also said that it is enormously damaging to the First Amendment to have journalists being monitored by the government and corporate partners.

There is a false premise that public safety has to be chosen over curbing mass surveillance, Boghosian said.

“Many law enforcement individuals themselves have said the old-fashioned” practice of getting a warrant after appearing before an impartial, neutral magistrate is not a bad thing, Boghosian said.

The evening had some very colorful moments, including audience members who were 180-degrees from Boghosian in her point of view, a Christian audience member who said the high level of surveillance made her think the devil was indeed among us, and Boghosian's interviewer, Lewis Lapham, saying he doubted there was any large-scale Islamic terrorism that warranted the “war on terror.”

Leading First Amendment attorney Floyd Abrams said that if leaker Edward Snowden is ever brought into a criminal court in the United States, a lawyer for Snowden might very well persuade a jury that his disclosure of the level of surveillance conducted on the American citizenry was in the public interest.

"If Mr. Snowden comes home some day, we'll have some interesting cases involving him," Abrams said during a talk given at the New York Law School tonight.

However, Abrams said that the U.S. Supreme Court is much less likely than it was during the Pentagon Papers era to let judges question the judgment of the U.S. Department of Defense and other governmental agencies that releasing national-security information would do great harm.

Abrams has worked on such First Amendment cases such as the Pentagon Papers in which historical information about the United States' military involvement in Vietnam was disclosed by Daniel Ellsberg; defending Al Franken from a trademark lawsuit brought by Fox News Channel over the use of the phrase "fair and balanced;" and Nebraska Press Association v. Stuart, in which the Supreme Court held that prior restraints on media coverage during criminal trials are unconstitutional.

Further, while Abrams praised Snowden for releasing information on the surveillance of Americans, he questioned the point of exposing the level of American spying on foreign leaders. 

While an ardent First Amendment proponent, Abrams said that he never thought that speech by hate groups like the Nazis has done any particular good. "Some speech does some real harm, but it's worth the price," he said.

Abrams also said First Amendment challenges could be successful in the right cases against  "ag gag" laws, which criminalize the undercover trespassing and subsequent exposure of practices at any facilities involving animals. The ideal test cases would be those involving journalists publishing information from their sources about alleged wrongdoing, he said. Journalists do not have the right to trespass, but the "statutes are so obviously designed not to protect property but to protect against revelation of confidential information," he said.

New York Law School Professor Nadine Strossen, who is a leading First Amendment advocate in her own right as the past president of the American Civil Liberties Union, said she would like to see the standards governing content for broadcast television changed.

Cases that were primed to challenge the harsher regulation that broadcast TV faces from the Federal Communications Communication over indecent material ended up not going anywhere, Strossen said. Those cases didn't involve "toplessness" or "bottomlessness," but four-letter swear words, she said. She also noted the irony that profanity like "shit" and "fuck" could be uttered in the highest court in the country but not on broadcast television. "The Supreme Court can say it but you can't say it over the air," Strossen said.

Abrams, who has represented many media organizations in his career, said that journalists are "best as truth-gatherers" and detecting when people are lying. But one of the greatest weaknesses of media organizations is trivializing important matters that the public is capable of understanding, he said.