There’s a scene in Laura Poitras’s documentary Citizenfour in which Edward Snowden, who’s holed up in a hotel room in Hong Kong, pulls a blanket over his head as he logs on to his laptop. He’s worried that the National Security Agency—or, who knows, perhaps some other intelligence agency—has managed to fit his room with hidden cameras, and he wants to keep the spies from learning his password. The same scene, slightly fictionalized, appears in Oliver Stone’s Snowden, released in September. It draws a vivid contrast between the whistleblower—human, paranoid, fugitive, vulnerable, literally hiding under a blanket—with the surveillance agencies, which are mysterious, powerful, and seemingly everywhere. The scene also captures an essential point about Snowden’s story: Even as Snowden fights to expose the government’s secrets, he’s desperate to protect his own. In this narrow respect, we might think of the NSA and Snowden as mirror images of one another. In fact, people sometimes joke that the NSA’s acronym stands for “no such agency.” The joke is an acknowledgement that the agency’s power depends on its ability to keep its secrets, not just its ability to learn everyone else’s. This is probably more true now, in the digital age, than ever before.
The digital age, our age, will give rise to many novel and vexing questions relating to the scope and substance of First Amendment freedoms. One reason for this is that the Supreme Court’s seminal cases relating to the freedoms of speech and the press—the cases that shape our public spaces and public discourse today—were decided half a century ago. They were decided before the advent of the Internet, the rise of technology giants like Apple and Microsoft, the invention of the search engine, the arrival on the world stage of transnational transparency activists, the development of end-to-end encryption, and the emergence of social media. Some of the factual assumptions that underlie seemingly settled First Amendment principles may no longer be sound. At the very least, over the next decade or two, the courts will have to determine whether to apply old precedents to very different contexts.
Questions about surveillance, official secrecy, and individual privacy—the questions that Snowden’s story provokes—will be among the most significant that the First Amendment will have to answer. What is the government entitled to know about us, and what are we entitled to know about it? Here in the United States, the post-Snowden debate has taken place against the backdrop of the Fourth Amendment’s protection against unreasonable searches and seizures, but questions relating to surveillance, secrecy, and privacy have long been the province of the First Amendment, too. The First Amendment has long been understood, for example, to limit the scope of the government’s surveillance power. It’s long been understood to give the public, in certain narrow contexts at least, a right of access to information the government would prefer to withhold. Whistleblowers have sometimes argued that the First Amendment limits the government’s power to punish them for disclosing official secrets. The First Amendment had something to say about surveillance, secrecy, and privacy before the era of smartphones and social media. It’s worth considering what the First Amendment might have to say about these topics—and what it should have to say about these topics—now that the digital age has arrived.
What we learned from the Snowden disclosures is that intelligence agencies have become immensely powerful; that their surveillance capabilities have been directed increasingly towards us; and that the institutions that were meant to protect individual rights against the encroachment of surveillance power have failed quite spectacularly. Thanks to advances in technology and investments in physical infrastructure, signals intelligence agencies like the NSA can now continuously collect staggering amounts of data, retain it indefinitely, and analyze it with powerful tools that can identify patterns and connections nearly instantaneously. The NSA’s data storage facility in Bluffdale, Utah, is five times the size of the U.S. Capitol. The agency, which is estimated to have some 40,000 employees, is said to be the largest employer of mathematicians in the world. A now infamous NSA PowerPoint slide published by The Guardian is titled “New Collection Posture”; it states forthrightly that the NSA’s aim is to “collect it all.” Our intelligence agencies haven’t yet managed to achieve this goal, but they’ve come unnervingly close.