He may not have been Time’s “Person of the Year,” but Edward Snowden undeniably had an explosive impact on American politics in 2013. With legislation pending to curb the NSA’s rapidly expanding powers amidst fumbling and outright lying by the White House and intelligence administrators, the fugitive leaker seems to have been largely exonerated by public opinion, even as the state still reaches for his neck.
For that reason, we should consider that the example set by the famous “hacker” shouldn’t remain just a happy accident, but an essential and regular check on state power. To maintain a free republic in a changing world, hacktivists will have to form the same bulwark to defend the Fourth Amendment that journalists traditionally have for the First. That bulwark is already forming the last line of defense against the erosion of the rights to privacy and due process in amazing ways.
The existence of PRISM shows how dangerously easy it is for routine government activity to wander into policy territory usually reserved for authoritarian states. It also demonstrates how major institutions can fail in their oversight, and mission creep can easily alter departmental relationships, such as between the NSA and DEA, in ways that streamline the brutal militarism of the drug war and empower prosecutors to throw an alarming number of Americans in prison.
The damage is already evident. Last month, PEN (Poets, Essayists and Novelists) International reported that American writers and journalists are starting to self-censor because of NSA surveillance. The Electronic Frontier Foundation has likewise filed a suit representing 22 different organizations who have claimed a chilling effect has deterred members and potential members from communicating with them.
In addition, the government has already attempted to circumvent free speech rights and intimidate the media by using private companies as guerilla enforcers, attacking journalists as well as harassing and threatening leakers. For example, Hackers found leaked HBGary documents revealing a plan to spread anti-Wikileaks propaganda for Bank of America and attack Glenn Greenwald.
Hoping for strict congressional oversight is probably a pipe dream, since congressmen only know what the agencies tell them. As Rep. Justin Amash (R-MI) illustrated recently: “In an extreme hypothetical, let’s say they had a base on the moon. If I don’t know there’s a base on the moon, I’m not going to go into the briefing and say ‘you have a moon base,’ right?” Government agencies have long ago mastered the art of hiding potentially damaging information, including from legitimate inquiry.
There is some evidence that the NSA may even be responsible for a J. Edgar Hoover Effect, further exacerbating the oversight problem. Former NSA analyst and whistleblower Russell Tice claimed high-ranking elected officials have been targeted for spying repeatedly. “They went after high-ranking military officers… they went after members of Congress, both Senate and the House, especially on the intelligence committees and on the armed services committees… they went after judges. One of the judges is now sitting on the Supreme Court.” How this sort of aggressive, unwarranted scrutiny will change the actions of public officials is unclear. What does seem certain is that it will, and likely already has.
Spontaneously, a new journalistic order is emerging. The “networked fourth estate” described in a 2011 working paper by Yochai Benkler for the Harvard Law Review may represent the most promising solution for unchecked government aggression. Benkler notes this informal framework includes the creation of partnerships between traditional news media as exemplified by The Guardian, with hacktivists, bloggers, and “outlaws” such as Wikileaks and leakers like Snowden.
This network represents a new riff on an old theme. Leakers with valuable information have been around for ages, and have customarily gone to the courts or newspapers to blow whistles on government activities. When these institutions fail due to incompetence, intimidation or complicity with the state, this network can provide a vastly broader base of supporters, facilitating what some bloggers are calling an “open-source” government: a regime whose machinations are kept in check by transparency that is publicly enforced by a global network of watchdogs. Since these informal networks are more decentralized than older institutions and have innovative ways of dealing with government retaliation, their flexibility and resilience make them much more difficult to intimidate than traditional media and institutions.
According to Benkler, the outlook for this emergent informational order appears encouraging, and even has a certain technological inevitability: “One would assume that the networked components of the fourth estate will follow the same arc that Wikipedia has followed: from something that simply isn’t acknowledged, to a joke, to a threat, to an indispensable part of life.”
Assuredly, the leaks are not over, and that’s probably a good thing. According to an August 2013 article by Buzzfeed, Anonymous members are present within the U.S. army, some ranking as high as captain. “A lot [of Anonymous members] are mid- to high-rank NCOs,” said one hacktivist currently in the army. “They are well-respected, have connections, and overly large security clearances. A lot of people who are part of the [Anonymous] culture are just dying at this point for something to come across their table that isn’t already out there. It is so easy to leak information that if you want to, you can do it.”
The battle ensuing between hacktivists and the state will be a crucial test of whose hands emerging technological power is better wielded by. Should we trust command-and-control power or spontaneous order? Who will be more responsible with it? Who will be more destructive? Expect the lines between what is “legal” vs. what is “moral” to be blurred as government and “lawbreakers” settle in for a long-haul cold war where each keeps the other from getting too brazen with newfound technological power. This battle will define constitutional rights, government power and the evolution of information technology for the next century.
A Libertarian writer and activist based in Washington D.C., Farrell is a former research fellow with the Center for Competitive Politics and has contributed to publications like The Daily Caller and PolicyMic. Opinions expressed are entirely his own.