Where is our Amsterdam? Lavabits, Snowden & Wikileaks Censorship recall age of Absolutism

The long struggle against censorship in the 18th century at the time of oppressive kings in Europe involved the hand-copying and circulation of unpublished anonymous manuscripts. Sometimes dangerous or proscribed books were printed in places beyond the reach of the French kings, in Amsterdam or Geneva.

The struggle against censorship was not won with the almost miraculous First Amendment to the US constitution. The amendment, which forbids the government to establish an official religion and prescribes freedom of speech, the press, and assembly only slowly over the subsequent two centuries actually came to mean in practice some of what the words seem to imply.

It only took a decade or so for the US government to abolish the First Amendment, taking us back to a censorship regime. It is not the censorship regime of the Sun King in France, but it more resembles that system than it resembles the world imagined in the First Amendment.

On Thursday, Lavar Levison, head of the anonymous email service Lavabits, closed his company down after 10 years rather than submit to an FBI demand that he turn over customer passwords.

“I wish that I could legally share with you the events that led to my decision. I cannot….the First Amendment is supposed to guarantee me the freedom to speak out in situations like this. Unfortunately, Congress has passed laws that say otherwise.” Levison concludes: “This experience has taught me one very important lesson: Without Congressional action or a strong judicial precedent, I would strongly recommend against anyone trusting their private data to a company with physical ties to the United States.”

lavabit

Just as Voltaire had to flee to exile from the French king’s arbitrary order of imprisonment without trial in the Bastille (first to Great Britain and then later to Amsterdam), so any American seeking privacy from the prying eyes of the Federal government must now try to find an email provider abroad that would resist the pressure of the American authorities. While it is legitimate for the police to gain access to someone’s records, such as emails, where there is evidence that the person committed a crime, it isn’t legitimate for the government to go on a fishing expedition through a person’s papers and effects to get pointers on how to arrest that person.

Intensive government surveillance of whom all citizens call, from where and for how long, isn’t warranted because at the beginning the police have no reason to suspect a crime. It seems increasingly clear that this information is being shared with local police in hopes of making a minor pot bust, as a form of harassment. There are disturbing indications, moreover, that the government is lying when it says it is not collecting the substance of emails or phone calls.

But not only is the government snooping into our private business, it is trying to censor what we read. Government employees have been forbidden to read the Wikileaks diplomatic cables. As a result, web sites that republish or discuss them, such as Tomdispatch.com, have been blocked on government servers.

But think about the prohibition. The Supreme Court found that once the Pentagon Papers were leaked, the New York Times could legally publish them. It seemed to have a doctrine that the government can try to cover things up with ‘classification’ schemes, but if it fails, then anyone can read the leaked documents.

But the US government currently disputes the Supreme Court decision, and continues to hold that it is a crime so much as to read the Wikileaks cables. That is, if the cables were reprinted in a book and the analyst were known to be reading that book, it could lead to the person’s firing.

So Levison has been forbidden to tell anyone about what information the government requested from him. His speech is not free.

Edward Snowden is in exile in Russia because the government, outrageously, charged him with espionage for leaking the existence of secret NSA programs that spy on the American people without a warrant.

Whistleblowing is espionage.

Reading books is a crime

Next we’ll have to publish our books and blogs anonymously in Amsterdam for fear of arbitrary arrest.

60 Responses

  1. Where is our Amsterdam ?
    There are countries with piracy (in publishing) as a common practice in South Asia and the Far East. Bangla Desh or Taiwan may have editors willing to publish books with no credits to anyone (No Name Books).

  2. Juan,

    I became a Lavabit customer in late June, abandoning Gmail because of Google’s status as a PRISM partner. It should be noted that we don’t know exactly what the government tried to force Lavabit to do. Lavabit could not have been compelled to hand over passwords because they don’t know them (they only have a cryptological hash). If you forgot your password, Lavabit couldn’t reset it for you.

    Lavabit also had the option (for paying customers) of keeping all your data on their server in encrypted format, so that not even the administrator could access the plain text of stored messages. Apparently, this level of privacy is now verboten in the Land of the Free™.

  3. If there was any doubt about where we now stand regarding the constitution; all doubt should be now be crystal clear.
    We have crossed the River Styx.
    Returning will take a heroic effort and I see no heroes…

  4. Didn’t see our present “Sun King’[s]name anywhere in the column. Must have been an oversight on your part.

  5. Holy creeping Kafka! Also see Philip Dick’s “The Minority Report”. Just as problematic as the unprecedented law enforcement misuse of gathered private information is that it gives the crazy conspiratorial libertarian types broken-clock credibility, credibility that they and their Republican and “New Dem” allies will spend to actively further dismantle the New Deal.

    • Speaking as a crazy conspiratorial libertarian type (T-Party, Constitution Party) with newfound broken-clock credibility,

      what is so great about a new deal that takes from the young very poor to give to the elderly less poor ?

  6. Ladar Levison is a true American hero, and bravo to him for shuttering his company rather than give in to the extra-Constitutional fishing expeditions of our own Stasi, the FBI.

    When the (un)PATRIOT Act was first passed, countless brave librarians across the country posted signs warning people who came into the library to read what they wanted that they were in danger of having the information they sought be monitored by the FBI.

    There has yet to be a Supreme Court challenge to the provisions of that particularly hideous law that stripped us of our 1st Amendment protections. Alas, the current court is dominated by people such as Anton Scalia, who has yet to meet a police power he didn’t like. I doubt very much that if Mr. Levison’s case reaches the high court that the justices will defend the First with the same vigor as they defended the Second Amendment.

    As in the 1950s, America’s true patriots are not those seeking to destroy the country’s principles in order to protect it; rather, they are the people who are brave enough – Bradley Manning and Edward Snowden come to mind – to stand up against the tyranny of the so-called righteous.

  7. It reminds me somehow of Farenheit 451, though I agree that the historical parallel is far more powerful.
    Thank you for your continued informed comments, they are essential reading.

  8. I was quite in agreement with most of what you said until I started thinking about the facts of Snowden’s behavior. If he’d wanted to be a whistle blower, he could have communicated directly with Glenn Greenwald, in person, in another country such as Brazil and asked Greenwald to protect his identity. There would have been ways for the information he stole to be passed on without involving the Chinese and, later, the Russian governments and their intelligence services. If Greenwald would have been as guilty of concealing a crime and a criminal as Judith Miller was may have been affected by the location of the transfer, I don’t know. I do know that I was entirely in favor of compelling Miller to reveal the identity of the people who gave her classified information, breaking the law and causing enormous damage.

    We don’t know the complete list of what Snowden stole and brought with him to Hong Kong, Greenwald certainly doesn’t know that he didn’t have a lot more on his laptops than would be of interest to readers of The Guardian. I doubt he shared everything he had with Greenwald. Trying to figure out why Snowden did something so astoundingly stupid as taking it on the lam to Hong Kong, all I can think of is that he intended to sell something. Even if he didn’t, the guy has to sleep and it would be within the realm of the almost certain that if Chinese intelligence wanted that information he had, and of course they did want it, they could copy it while he was asleep, perhaps drugging him as necessary. Let’s not pretend that they wouldn’t be able to do that to Snowden without even him realizing that. The Chinese government allowing him to go to Russia is especially fishy. If Chinese intelligence wanted what Snowden had, I’m sure Russian intelligence wanted it just as much. At this point I think Snowden, who figured he could deal with the Chinese government was a commodity to trade and manipulate and I’d imagine that there were deals made for him and his laptops between those two governments. If Russia hadn’t wanted to get hold of him to get what he had and to make use of someone who was an international celebrity and symbol, they’d have merely left him in limbo in Hong Kong, a mess for a rival government to deal with.

    I suspect that the codes and information Snowden took to Hong Kong and Moscow are of far more use to two governments which would love to have the same capability that Snowden claimed the NSA has, reconstructing it for their own purposes without even the minimal restraint that FISA provides. If that’s the case, I’d guess their computer scientists are able to make use of some of the code and information held on Snowden’s hard drives, I can only imagine what Alan Turing would have done with that level of information about German technology. Call me suspicious, but I think their domestic dissidents will be paying a large price for what they got from Snowden for years to come.

    I’m not a lawyer and don’t know if Snowden is guilty of espionage but he’s certainly done more than mere whistle blowing. Bradley Manning is, as far as I can see, a heroic whistle blower who was hung out to dry by those he leaked to. Snowden, I’m afraid the case that what he did is mere whistle blowing falls apart due to his course of behavior.

    • Anthony,
      Snowden expects to be killed.
      He has from the start.

      Does that change your psychoanalysis ?

      • “Snowden expects to be killed. He has from the start.
        Does that change your psychoanalysis?”

        Speaking of psychoanalysis, Snowden’s fear of being killed is not driven by external reality; it is all a product of his fevered imagination and his self-flattering need to feel important enough to think officials want him assassinated. His return to the US is wanted because he is a fugitive from justice. No one is out to assassinate him. He read too many James Bond books in Hong Kong and in Moscow’s airport transit area.

      • Yeah, Mary McCarthy was one of my cousins. You really believe no one has ever made that irrelevant association before, don’t you.

    • Snowden sought refuge where he could. Ellsberg says he would have done the same, if he were in Snowden’s shoes (because Obama’s America is far more barbaric than Nixon’s).

      Yet you infer a pretty sordid conspiratorial agenda on Snowden’s part – “all I can think of is that he intended to sell something”. Really? How about the idea that refuge from the US is a hard thing to obtain, and it must be sought in countries which have the clout and inclination to resist the US? Has it occurred to you that the laptops are probably heavily encrypted, and might be set to erase their contents if tampered with, thus reducing the risk that the contents are easy to extract? Casting aspersions with no basis says a lot about you. Shutter nailed it: you really are McCarthy.

      • Why didn’t he go to Brazil and give his leak to Greenwald directly, asking that he protect his identity? He may have entirely avoided legal jeopardy by being undetected. He’d have been right in the neighborhood of two countries prominently mentioned as possible refuges which would not have extradited him to the United States.

        The assertion that someone working for a spy agency would have chosen Hong Kong as a safe haven is absurd and incredible. The only explaination of that move that makes any sense is that he was wanted to sell information that he didn’t share with Glenn Greenwald. I would like to ask Greenwald if he doesn’t believe Snowden had a lot more on those hard drives than he shared with him or what evidence he has that he’s got all of what Snowden took with him. From news reports, he took an enormous amount of information with him or why did he need that much storage capacity? Do you really believe that Chinese intelligence didn’t have it from him? That idea is entirely absurd. They’d have turned him over to the United States immediately if there wasn’t something they wanted more than to be owed a favor from the United States. Or do you believe it was the Chinese respect for privacy, human rights and some rule of Chinese law that favored an American who stole secret information, which, of course, they would never, ever consider might have enormous amounts of information of interest to them contained on those high capacity hard drives he had in his physical custody and which they would never try to obtain by, you know, intelligence operations or as the price of them not turning him over to the U.S.? They were under no obligation to let him go to Moscow where they could be certain of one thing, that Russian intelligence would like to see what Snowden had as much as they did. Call me skeptical that the Chinese government are impressed by the honor, morality and observance of human and civil rights of Russian intelligence.

        I’m amazed how unrealistic the Snowden fans are, how far into complete unreality they are prepared to go to turn him into a hero when his conduct proves he isn’t anything like one. He’s no Bradley Manning. He’s certainly not Daniel Ellsburg who faced trial and took his chances instead of fleeing to China or the Soviet Union with many gigabytes of classified information.

    • That is an incredibly smearing job ! Weake up, the cold war is past.. America is becoming – or rather is already – a police State : your try to reverse things is doomed; US is not more virtuous than China or Russia. I’m shocked by the extent of the US spying.
      I always knew that the image of the US as the champion of liberties and the leader of the free world against totalitarianism (aka Soviet Union and communsm) was mere ideology, but nevertheless, I’m shocked by the extent of US spying.
      And be assured that they will wrestle with any other nation trying to resist their spying. We already know from Snowden that UK intelligence had to spy for them in exchange of ressources, no western countries dared to offer asylum to Snowden and this defie the US..

      Where is the early utopia of the infinite Internet freedom ?

      • US is not more virtuous than China or Russia.

        Well, other than things like the rule of law, the Bill of Rights, a free and private press, I’m sure you’re right.

        If an Edward Snowden kind of guy came to the U.S. with stolen intelligence from Russia or China and in jeopardy of being sent back to them came to the United States, do you suspect that, say, the NSA or some other intelligence organization would not include access to his entire hoard of stolen intelligence in return for allowing him to stay here or to avoid being sent back? No, of course you don’t and neither do I. And if the guy was uncooperative, they’d take it from him either by stealth, drugging him as necessary, or other means.

        We know that the communications records he revealed were between people in the United States and other countries, I’d imagine some of those in Russia (do you forget the Marathon bombers?) and China. If he took any of those with him on his trip I’d expect those records would 1. be the first things the Chinese and Russian intelligence agencies looked at, 2. the people on those ends of those communications are in mighty big trouble.

      • “I always knew that the image of the US as the champion of liberties and the leader of the free world against totalitarianism (aka Soviet Union and communsm) was mere ideology, but nevertheless, I’m shocked by the extent of US spying.”

        Easily said by someone who has never lived in the Soviet Union, China, or Eastern Europe under communism. It is always a source of amusement to listen to Americans and Europeans who have never faced communist repression pontificate about the failings of the United States, while living their comfortable, secure lives in the West.

        • “Easily said by someone who has never lived in the Soviet Union, China, or Eastern Europe under communism”.

          What’s that got to do with her being shocked?
          You seem to be off on your usual tangent, again.

  9. As I read these thoughts on censorship, I reflect on John Milton’s elegant speech/essay ‘Areopagitica’. Although written in the 17th century, the principles put forth in this work still hold today. I would suspect, that most Government lawmakers are unfamiliar with this work.

  10. The first amendment doesn’t exist if court orders are sealed.

    Forbidding the use of government computers to access something is the same as making it illegal to read books.

    Yeah, this isn’t hysterical or anything.

  11. Government employees have NOT been forbidden to read Wikileaks cables.

    They have been forbidden to do so at work.

    Can we discuss what’s going on without lying about it?

    • “Government employees have NOT been forbidden to read Wikileaks cables.”
      How do we know that this isn’t a lie?

      • No arrests. No punishment. No orders issued. No cases before the courts. No jobs lost.

        Nothing has happened, except an employer has blocked some sites on work computers.

        There are something like 3 million people employed by the government. Don’t you think somebody would have noticed if they’d started arresting people for reading Wikileaks cables?

    • I thought they were ordered not to read because the info is still considered classified. Whether they were at work or at home would make no difference. What’s your source?

      • My source is the stories reporting the alleged “ban” – that is, the very same sources Professor Cole is (mis)using for his claim.

  12. The US has no allies except Israel, which leads it around by the nose – all of the rest of the so-called allies are really vassals. Do you really think the Dutch vassal will publish or do anything its US master doesn’t like?

  13. It’s not only crimes against the American people. The Obama administration threatens all of us with this really sick total surveillance. America isn’t a functioning democracy, Jimmy Carter had said at Die Atlantikbrücke last month. Isn’t it high time to impeach the president?

  14. “Next we’ll have to publish our books in Amsterdam for frear of arbitrary arest.”

    Not if we do something about it.

    It seems we’re still trying to convince ourselves that we live under a police state. I’m convinced. Seems that you are too, Juan.

    Now what are we going to do about it?

  15. Has the “ban” on government employees including the military, and government contractors, been revised since 2010? Sure looks like the “cautions” against looking at those so-secret documents, citing fear of “electronic spillage (ES)” and reminding the potential self-educator about all those criminal liabilities for doing so, at least originally extended to whoever and wherever and from whatever computer…

    link to huffingtonpost.com

    link to csmonitor.com

    As to hysteria about the fading of the First and Fourth and Fifth Amendments and other bits of the antiquated Constitution thing, one of my 3×5 cards reads “Without a remedy, there is no right.”

    Where’s the remedies for our Brave New 1984 World behaviors?

  16. Late 17h century Amsterdam was to France what 21st century Moscow is to the USA. Putin helps Snowden while censuring and imprisoning internal opposition. Amsterdam banned the great philosopher Baruch d’Espinosa, while supporting French free-thinkers.

    • you are mixing up centuries and also don’t have the story right. The rabbis expelled Spinoza & pressured the Dutch authorities about him. Amsterdam kicked himout briefly at the behest of the Jewish community, but after a year he came back & the Dutch didn’t bother him again. By 1700s there was much more toleration; indeed in some ways the Dutch invented it in its modern form.

      • Sorry, Mr. Cole, I fully agree with your view on rising censorship in the USA. And I love my birthplace Amsterdam, where I have been alderman for Culture.
        But I have to insist on the specific character of Dutch toleration. Spinoza was banned from the city, lived in a small village until his death. His main works were not published until after his death. His first (Amsterdam) publisher was sentenced to a long jail term and died in jail.
        The ambiguous character of Dutch toleration is well described by Jonathan Israel: The Dutch Repunlic (etc), Oxford 1995*, Revised edition 1998, pp 674-676.

        • Dear Huib:

          I was once part of a year-long seminar on the history of religious toleration and read a lot about the Dutch case. You still have the wrong century and they did publish Voltaire.

  17. “When the (un)PATRIOT Act was first passed, …”

    Russ Feingold was the only US senator to oppose this abomination. (link to archipelago.org) Since then, many senators and representatives have been re-elected to their or higher office. Joe Biden was elected vice president and Hillary Clinton is again being promoted to become the first female president. So, what does that say about the American people?

    • “Russ Feingold was the only US senator to oppose this abomination.”

      And he was dumped by the voters of Wisconsin. So what does that say about them?

  18. I recall being told many years ago that a member of an organized crime syndicate, it may have been Meyer Lansky, said that if you are going to engage in crime, study the law. Update: If you are going to shred the Constitution, study the Constitution.

  19. Well said.

    It is difficult for Americans to psychologically admit what is happening.

    • State Department officials have repeatedly told our graduate students that they won’t be hired if they are known to have read the cables, Bob.

      • That’s a bit of climb-down, Professor, from “There is no more First Amendment.”

        An intelligent discussion could have been had about that action.

        But you’d rather have OMG JUST LIKE THE NAZIS yelling, instead.

        • Seems like Joe’s idea of an intelligent discussion is a lot like what one gets from a Libertarian: he controls the precise question that is allowed to be discussed, he frames the issues, he supplies the “facts” both stated and inferred and implied, he sets all the definitions. I guess if one has that degree of freedom in the “discussion,” there’s a certain kind of “intelligence” at work…

          Nice finish to the comment, though, with both subtle and IN YOUR FACE put-downs…

          And of course there are no rungs on a well-greased slippery slope.

      • That kind of reminds me of a Candid Camera episode which placed a sign on the outside of a public building warning those who read it would face criminal prosecution.

        A teenager is recorded walking to the sign, reading it, then immediately running away from the sign at a very high speed – presumably fearful of being arrested.

  20. But the American government has established an official religion, it is Secret Intelligence, the counterproductive antichrist of the new age. The whole first amendment is broken.

  21. Joe, it’s interesting that you ask for discussion without “hysteria” or “lying”. If you really care about this, perhaps you should make your suggestions to the US authorities.

    • I find the discussion of the issue from the authorities to be much more even-handed, fact-based, and level-headed than that which appears here.

      Which is a pretty sad commentary on Dr. Cole.

  22. goverment employees can’t access those materials at work. there is a difference there, however subtle. like the military’s blocking of website. what an interesting position to be in.

  23. Out of control government secrecy is just plan nuts when it exists for no reason at all. But, here are the reasons:

    Global warming will diminish the food supply. People who do not have food organize and other-throw governments.

    Fossil fuels useful for agriculture are nearing the zone of sudden collapse. Sudden collapse means transportation grinds to a halt, power generation grinds to a halt, societal unrest (mobs, violent revolution) become more likely.

    The dollar is a fiat currency subject to sudden collapse. Americans who can’t buy what they want and when they want, become unstable.

    If I were a narrowly focused president, and I was experiencing failure on several fronts. I too might panic and order the alphabets to ignore our constitution.

  24. The implication was that military personnel were prohibited to read the Guardian information, not just from the military computers, but from anywhere. Here is a quote:

    “A June 7 memorandum from the Office of the Under Secretary of Defense to Defense Department security directors instructed them to warn employees and contractors that classified information posted on public websites was still considered classified.

    “Leadership must establish a vigilant command climate that underscores the critical importance of safeguarding classified material against compromise,” it read.

    The letter from Director of Security Timothy A. Davis was sent to the Presidio and other military installations.

    An attachment to the letter instructs employees how to delete classified information if they accidently download it and warns of sanctions if they “proliferate the information in any way.”

    link to montereyherald.com

  25. Minor nit: prohibiting government employees from reading erstwhile classified information is hardly the same as the Pentagon Papers case. That the Wikileaks cables were published does not affect their classification status, legally, and it’s perfectly acceptable to prohibit Government employees from accessing information above their classification grade.

    It’s absurd, true, but not an assault on the First Amendment.

    The Administration is NOT prosecuting the Times for printing the Wikileaks cables.

    And still no one is seriously bringing up the issue of why on earth some contractor, after a few months on the job, was allowed access to all of these systems. It implies there are thousands and thousands of private contractors with such access…and surely some number of them are willing to use their access for nefarious means, from garden variety extortion to insider trading, on up to private or state-sponsored espionage; because, frankly, the average American is far more likely to be harmed by those activities than the NSA spying on us.

    • There is a very interesting answer to that question, BruceJ: because he wasn’t an analyst, but a systems administration.

      The lowly guy in IT who reboots your computer at work when it freezes up? He has the capability to go into the CEO’s email and read the messages he sends to his mistress.

      Analysts, managers, and section chiefs far above Edward Snowden couldn’t do what an IT at an NSA contractor can do. It’s an interesting problem.

  26. We can only hope that these repressive actions are reflective of late stage American empire failing.

    The secrecy genie will not go back in the bottle easily, if at all, ever…..but will we be able to laugh those with inheritance into some sort of social responsibility and reduced wealth/control?

    Thanks for the recent postings about humanities broader future professor Cole.

  27. Again, lot’s of discussion (not a bad thing); but what are YOU going to DO about it?
    Words and lot of denial about the actual situation will be met with automatic tightening of the remaining freedoms.
    If the collective you, wait to be directly affected; it will then be too late: You know, when they come for you…

  28. Regarding the Pentagon Papers decision that publication prevents censorship, take it one step further in the federal court suit in which an injunction was sought by the Israeli government against St. Martin’s Press in a federal court to prevent publication of a book authored by an ex-Mossad agent, “By Way of Deception.”

    The federal court denied an injunction simply because the book had been distributed to booksellers, even though none hade been made available to the consuming public.

    The admission in the federal suit by Israel that the author had, in fact, been a one-time Mossad case officer, boosted the credibility of the author and elevated the book to a New York Times #1 best-seller.

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