Title: Censorship Then and Now

-- By KatherineHamm - 03 Nov 2015

I. Censorship: A Very Brief History

Throughout history, censorship has been a tool for political dominance and control. In 399 B.C., Socrates was forced to drink poisonous hemlock for spreading his philosophy and allegedly corrupting the youth of Athens. In 213 B.C., Chinese emperor Qin Shi Huangdi ordered that Confucian texts be burned and its scholars buried alive. In 443 B.C., the ancient Romans first introduced the government position of censor. The censor’s job was to keep count of citizens as well as supervise and regulate public morality. The governing bodies of ancient civilizations practiced routine censorship of texts as a means of controlling citizens by quashing revolutionary ideas.

Unfortunately for us, not enough has changed since then. Powerful contemporary governments continue to use censorship to suppress the free exchange of ideas. Press censorship and government propaganda were common in both free and unfree nations up until the 20th century. By the 20th Century, the notion of independence had become so rooted in most Western countries that censorship as a unified government objective fell out of favor, giving way to a fragmented campaign of individual and localized battles. Grassroots censors in the United States waged a moral campaign against offensive books. It became the responsibility of librarians, schoolteachers, parents, and community groups to keep immoral books off the library shelves and away from children whose malleable minds they might corrupt.

In unfree nations, governments banned subversive books that threatened their political hold. Formal censorship in Russia was practiced throughout the Russian Empire and persisted in the USSR until the late 1980s. In Nazi Germany, books were routinely and publicly burned, giving credence to German-Jewish poet Heinrich Heine’s prediction that “where they have burned books, they will end in burning human beings.” Government-sponsored censorship continues to be rampant in China. In order to publish there, authors may need to revise nearly a quarter of their contents, including key plot points and characters. Consequently, many publications have gone underground. The current ratio of official-to-pirated books is estimated to be 40/60.

Modern standards of personal freedom and individual expression demanded by Western culture do not support outright censorship in contemporary society. But why censor when you can surveil? With the enhanced ability of technology to power mass data collection, modern governments no longer have to censor what we’re reading. Instead, they can track and record everything we look at.

II. Censorship Today: Self-Censorship, Mass Data Collection, and the USA Freedom Act

On June 2 of this year, the United States government re-approved NSA bulk data collection, a practice originally premised on Section 215 of the Patriot Act, which lapsed on June 1. The new bill, known as the USA Freedom Act, permits the collection of bulk data, or “metadata,” on a temporary basis and imposes a new time limit of six months for keeping the data. (Historically, metadata could be collected for up to 5 years.) Metadata already collected by the NSA will be preserved "until civil litigation regarding the program is resolved, or the relevant courts relieve NSA of such obligations." After that, the data will be destroyed.

Bulk data collection activities fall under the auspices of the Foreign Intelligence Surveillance Court “FISC” or FISA Court. The Court reviews all applications for FISA warrants, which enable the lawful collection of metadata. However, little is known about the FISC’s review process, and it has been the subject of considerable controversy. A few key features of the FISC are notable. First, the Chief Justice uses his sole discretion to appoint Judges to the FISC, without traditional Congressional oversight or confirmation. Second, the Court sits ex parte and hears cases in complete secrecy due to their sensitive nature. Finally, since data shows that approximately 99% of warrant applications are approved, the FISC appears to have no meaningful level of review. Indeed, a former judge on the FISA Court of Review noted that effectively no applications were ever denied, though a handful required amendment before approval. It’s no wonder that critics have referred to the FISC as a kangaroo court.

The FISC will continue to review warrant applications under the Freedom Act, permitting mass data collection for the next six months. More troubling is the fact that Section 702 of the FISA Amendments Act also authorizes the collection of mass data—and doesn’t expire until 2017. Scarier still is the FISC’s authority under pen/register trap and trace and Section 214 to collect Internet metadata; this authority is permanent. Given the FISC’s opaque administration and thin level of review, it may choose to interpret the Freedom Act differently than Congress intended. Indeed, according to one former FISC Judge, mass data collection could be interpreted broadly to permit the collection of physical objects, such as library books.

III. Where’s the Harm in That?

Proponents of mass data collection argue that it does not unconstitutionally invade the privacy rights of American citizens because (1) it targets non-U.S. citizens; and (2) it doesn’t target content. I’m unconvinced. We know now that the NSA collects domestic call information between suspected terrorists and U.S. citizens. Though U.S. citizens may not be targeted specifically, they aren’t exempt. Furthermore, while collected phone data does not include content, plenty of information is conveyed from location of callers to time of call.

As a former English major, I’ve always believed that we should read as much as we can and that content should be freely available to everyone. As a libertarian, I’ve always valued my privacy. If it’s true that you are what you read, then the NSA and U.S. Government know us intimately. Given the invasiveness of mass data collection and the uncertainty of its limits, why would contemporary authors risk making content public when they can limit their exposure by privatizing and self-censoring?

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