Bush administration officials, according to a recent report in The New York Times (which must have been “leaked,” since it was not announced) are considering a plan to escalate their battle against leaks of classified material. Now, they reportedly want to bring criminal charges not only against the government employees who divulge the secrets but also against the journalists who disseminate the information to the public.

Such a policy is described as a departure from the “informal rules of engagement” governing relations between the government and the news media. But the history of journalism in America suggests otherwise. In fact, the government has attempted to rein in an independent press time and again, beginning even before the Revolution itself.

The law the Bush administration is reportedly considering using against the press is the Espionage Act of 1917, passed by Congress shortly after the U.S. entered the war in Europe and signed by Democrat Woodrow Wilson. The law was passed in a climate of wartime hysteria, fueled by suspicion about the loyalty of the large German population living in the United States.

The Espionage Act was amended in 1918 with a series of new sections that were called the Sedition Act. (Those amendments were repealed in 1921, but the original Espionage Act remains on the books.) The laws were used by federal prosecutors to bring charges not only against spies but also against a host of Wilson’s critics and war dissenters – notably Eugene V. Debs, who was sentenced to 10 years in federal prison for giving a speech in which he expressed support for resisting the military draft.

Throughout American history, the government and the press have been at odds over the proper balance between presidential power and press freedom. President Bush is renewing this struggle, and it is time for the press to push back.

Too many Americans have the view that press freedom is some kind of birthright, that it is a status we all get to enjoy without having to do anything to protect or strengthen it. But the record of the past 300 years indicates that this is not the case.

We have had a record of regularly recurring threats to press freedom. These date from the attempts by the English authorities to crack down on the rebels plotting the American Revolution, to the original Sedition Act of 1798 (used by the John Adams administration to jail editorial supporters of Thomas Jefferson), to the crackdowns of the World War I era, to the current initiatives by the Bush administration to investigate and jail journalists.

In fact, whatever degree of freedom the press has is the result of a struggle, not a foreordained declaration. Every generation or so, Americans find they must renew this struggle to defend freedom of the press.

In the present climate, how can this essential liberty – the one that the founders intended as a guarantor of all our other liberties – be defended?

Much of the burden will fall on the news media themselves. Some media outlets, of course, are not interested in a fight under any circumstances. Some would rather support the administration, and they are (of course) free to do so. Others might like to defend their freedoms but are afraid, especially those broadcasters who are licensed by the FCC or the giant conglomerates who are answerable to their stockholders.

That leaves the struggle for press freedom to a dwindling number of independent media. They face a powerful adversary in the federal government, but they might find a weapon if they reach back into press history for a tactic that served Jefferson’s generation very well.

In the years leading up to the break with England, the colonial rebels faced a practical problem: how could they express their views or advance their plans when publication of those ideas was an offense to the Crown punishable as a crime?

One technique was to use pseudonyms, or pen names, so that the British authorities could not be sure who was responsible. In the Revolutionary era, many writers used pseudonyms, and they often looked to their heroes from the ancient Roman republic for names such as Publius or Cato, which they used instead of their real names.

Nowadays, if journalists need to resort to pseudonyms once again, they have a storehouse of names from the heroes of own early Republic to drawn upon. American history provides plenty of suggestions:

-- “Isaiah Thomas,” a colonial printer who had to flee Boston in 1775 because he thought the Redcoats were coming to seize his printing press and prevent him from publishing his aptly named newspaper, The Massachusetts Spy,

-- Or “Benjamin Franklin Bache,” a grandson of Ben Franklin and critic of John Adams, who died in prison in 1798 while awaiting trial under the country’s first Sedition Act.

--Or, there’s always the author of the First Amendment himself, “Thomas Jefferson.”

There is no lack of examples. The question is whether there are any willing to follow.

Patrick M. Ebbitt - 9/24/2006

Mr. Todd,

As an extremely tech savvy/engineering expert can you shed any light on the current drafting of the Communications Opportunity, Promotion and Efficiency Act of 2006 (COPE) and the overall effects it will have on privatizing the Internet?

How will our internet change? Will it be drastic?

Will we be able to browse the same content/sites? Will formats change? Will we be limited to select providers?

Once implemented can it be defeated/gotten around?

If a subscriber already has high speed digital cable will they be effected?

Thanks

Andrew D. Todd - 5/16/2006

I am not a lawyer, and I do not have any great legal knowledge of the Communications Opportunity, Promotion and Efficiency Act of 2006.

http://en.wikinews.org/wiki/US_Congress_drafting_bill_that_may_affect_Internet_freedoms

http://www.house.gov/upton/press/press-04-04-06.html

From experience, however, I think that as the bill moves forward, it will begin to attract more hostile attention from the internet community. It only requires a couple of dozen votes to get a bill out of committee. The applicable legislators are comparatively inexpensive to bribe. However, bribery begins to become expensive when the bill reaches the house or senate floor, and massive grassroots opposition is organized. Once a legislator has been "slashdotted," he generally becomes gun-shy, and doesn't try sponsoring an objectionable bill. He grasps the fact that the number of people who are willing to pay fifty bucks to end his political career easily outnumber his constituents. Both Senators and Representatives understand that they cannot pull the National Rifle Association's tail with impunity, but they have not yet grasped that the same principle applies to the internet.

However, I regard economics as more potent than law.

There are about ten competing national telecommunications networks in the United States, each roughly comparable in extent to the interstate highway system (see Wired Magazine, June 2000, p. 142, for a map). Given that each of these networks has the ability to carry the entire communications traffic of the United States for the foreseeable future, competition is predictably brutal, and the scope for price-cutting is more or less unlimited. There is enough optical fiber in the ground for every American to have his own private nonshared national video-grade network going everywhere the interstate highways go. Any claims the telephone companies make about congestion are straight-out lies, almost as flagrant as the lies they tell about wiretapping. I say that on the basis of having built models and having worked out cost estimates. Practically speaking, when these firms compete, it is with all the dirty tricks of a Watergate conspirator (*). If you can get to a point where you have truly competitive access, you won't have too many problems. Large wholesale customers consider it prudent to be "multi-homed," that is to have actual connections in place to multiple competing networks, and therefore to be in a position to retaliate within minutes, or seconds even. If the network refuses to carry even one message for the customer, then the customer can divert all his traffic away from the network, and of course, the network will get his point fast enough. The most recent developments in internet software are designed to automatically exploit competitive access if it is available, just as current internet software is designed to automatically go into encryption if the other side will play.

(*) I have heard certain indications (unconfirmed) that telephone company employees and cable television employees may have begun to carry out acts of sabotage against each other's equipment in the field. Construction workers do this kind of damage accidentally all the time, and it is very hard to prove malice.

The problem is getting to the competitive zone. However, the distance you have to go is generally measured in single miles or less. Once you assemble, say, a hundred people for the purpose of getting internet access, you can always go shares on a fifty-foot tower. From the top of a fifty-foot tower, opportunely situated, you can see for miles, and you can rig up one or more microwave relays, likewise at a modest cost when shared out among a hundred people. Here is an example of a subdivision in Colorado

http://www.rric.net/

In this case, the organizer did not have to build a tower because he was fortunate enough to live on a ridge, with a sufficient view. He did, however, have quite a lot of trouble getting hooked up to his next-door neighbors. Telecommunications monopolies are immensely local things, practically at about the block level. Telecommunications companies use the term "last mile" freely, but in most cases, it would be more accurate to say, "last five hundred feet." That terrifies the telephone companies, because five hundred feet is ultimately within the reach of the do-it-yourselfer. The most promising form of do-it-yourselfiing is Wi-Fi, because the federal communications law says that ownership of land does not confer ownership of the air waves traveling over the land. In fact, the federal communications law specifically provides that a local government or a landlord cannot prohibit someone from putting up an antennae of reasonable size. Wi-Fi can be used to create "mesh networks," in which each user automatically relays messages for other users. Thus, even though each user has a Wi-Fi set with a fairly short range, the chain can carry messages for a considerable distance, and put them onto the competitive internet backbone. Pay especial attention to the link to MIT's Roofnet below.

http://en.wikipedia.org/wiki/Wi-Fi
http://www.firstmilesolutions.com/
http://www.wifiworldrecord.com/
http://en.wikipedia.org/wiki/Wireless_mesh_network
http://pdos.csail.mit.edu/roofnet/doku.php
http://www.skypilot.com/technology/advancedantenna.htm

There is also "Onion Routing," a method of obscuring where internet traffic is going.

http://tor.eff.org/
http://en.wikipedia.org/wiki/Onion_Routing

An onion router does not have to publicly declare itself as such. It can be like one of those little stores where, if you give the clerk a certain password.... The ultimate implication is that a telecommunications provider cannot know enough to shut down traffic to a particular destination. All it can do is to cut itself off from the internet, showing its customers only that information which the telecommunications provider has the resources to check out. This is in effect the approach of a children's library There are various measures, such as onion routers, which have been tried as commercial propositions, but which have failed, because the potential audience did not regard them as necessary. People were not prepared to pay money to be "occupationally paranoid." It was understood that the President would not seek to tap every telephone in the country. Now things have changed. I am sure that some clever entrepreneur will make a business of supplying relay points in Zurich or Helsinki for Americans who can pay good money for them. I shouldn't think it would add more than ten percent or so to your internet access bill. You may have to practice what the soldiers call C3I, otherwise known as infowar, but the systems will be highly automated, so once you plunk down your money, it won't be any particular difficulty to use them. There is so much software between the browser-and-website experience and the actual underlying hardware that all kinds of improvements can be made without requiring any adaptation on the part of the user. One point: people often speak about the internet as if it were a physical object, which could be owned, or privatized. It isn't. It's a set of open public agreements about how to go about contacting people. These agreements cover all kinds of contingencies, up to and including hostile action. There is even one rather amusing RFC document which prescribes methods for sending internet traffic by carrier pigeon.

http://www.faqs.org/rfcs/rfc1149.html
http://www.ietf.org/rfc/rfc2549.txt

If you have suitable telecommunications equipment, reaching where you want to go, you can hook it in, and internet (verb) over it. The bottom line is that you may have to buy appropriate radio sets, and you may have to do some political organizing, and you may have to give away equipment to people who you need in your organization. The details all depend on your location.

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Previous HNN posts on this and related subjects:

http://hnn.us/readcomment.php?id=73451&;bheaders=1#73451
in:
http://hnn.us/articles/19928.html

http://hnn.us/readcomment.php?id=80232&;bheaders=1#80232
in:
http://hnn.us/articles/21722.html

Vernon Clayson - 5/15/2006

Mr. Daly, all well and good but there does not appear to be a requirement that the news be delivered in a fair and balanced way. One would expect that to mean that both sides of issues would be given and the reader, or listener, could decide for himself what he chooses to believe. There is no newspaper or other media that provides balance. Each owner and editor decides for himself what slant he will give to even the most insignificant news article. If it bleeds it leads might have been a one time practice but now it's political bias, thrill and shrill. Freedom of the press is taken to mean they can say anything they want and they do. No one takes into consideration that the news is punched out 365 days a year, yesterday's paper is fishwrap, it's day old news the minute it is printed.

Chris Daly - 5/15/2006

Thank you all for your comments.

Here's how I see it:

The First Amendment asserts the freedom of the press as part of our fundamental law. It does so not for the private benefit of one industry. The First Amendment is not like a tax break for bil oil or agribusiness. It does not cater to a narrow interest, and it is not easily amended or repealed.
The First Amendment asserts a right that belongs to the people as a whole. It involves a nearly universal interest, not a special interest. The idea, as I understand it, is that the people have the right to know things. First and foremost, they have the right to know what the government is up to and they have the right to know something meaningful about the characters of their rulers. If they are going to know enough to govern themselves, they must have an independent press to inform them.
The press -- and all its descendents in visual and electronic media -- are therefore agents of the people. We act on behalf of essentially the entire adult population.
The sovereign American people, acting as a whole, also hire a government to do things for them. They enumerated the powers of that government rather spefically. The government is supposed to do those things and no more. It is not supposed to go about inventing things to do until it gets caught.

As the people's agents, the press has a mandate under the First Amendment to act on the people's behalf all the time, no matter whether we are at war or peace, no matter whether the executive branch is in the hands of the Democrats or the Republicans.
Granted, this arrangement is not perfect. But it has gotten us this far.

Vernon Clayson - 5/15/2006

The media is the enemy of the federal government. The federal government is a huge unwieldy organization made up of practically uncountable parts, all operating on laws, rules and regulations posited and decreed by politicians who cannot seem to rise above their own primarily selfish interests and the influence of unaccountable and unelected individuals who have their own selfish interests. It operates at a snail's pace and compared to that, the media is a closed culture whose only purpose seems to be to keep the public off balance with their rapid fire pronouncements which can be anywhwere from outright lies to half-truths about government to breathless announcements about low-life actors and celebrities who require constant attention, with each of their actions and statements considered as important as those of statesmen and government leaders. No thinking person should have to deal with a bleat from a Susan Sarandon sharing headlines with the leaders of the most prosperous nation the world has ever known. The newspaper can get an issue out over night, the government cannot, it must take many things into consideration and satisfy millions of people, the newspaper only has to satisfy their biased editor.

Frederick Thomas - 5/15/2006

...are at work in this issue, all supported in some way by the constitution:

-freedom of political speech, subject to protection of the other rights and interests specified in our basic law

-freedom of the press, subject to the same limits

-freedom of the government from subversion, espionage and treason, subject to the same limits

-freedom of individuals and organizations from slander or libel by the press, subject to the same limits

-freedom of the electorate to hear a range of opinion needed to make rational informed decisions, subject to the same limits

What I do not see in this debate, particularly from the mainstream press, an opinion monopoly, is any willingness to consider the other rights specified in the basic law, and balance them against their free press rights. There is no balance as regards press freedom, from the prtess side. They wish to retain absolute rights and power.

Whereas freedom from unreasonable search and seisure is know to be limited, the mainstream press maintains that press freedom is not limited. They argue that their right is an absolute-the only absolute.

They do not even deal with the fact that their approach denies the populace the range of informed opinion which the founders sought to promote by guaranteeing press freedom, because it is a monopoly.

Does it make sense in this situation to apply anti-trust to opinion monopolies as well as other economic monopolies? Of course-it must. If habeas corpus has limits and balances, then press freedom does as well.

Andrew D. Todd - 5/15/2006

The efforts of the People's Republic of China to censor the Internet have, on the whole, failed. The main reason is that large numbers of people in the open societies are willing to provide infinite numbers of dummy addresses, encrypted relay points, etc., to the point that they can simply overwhelm the brain power of the Chinese censor corps. A more democratic country will be even less successful at censorship. The only way to maintain censorship is to be an economic basket case like North Korea. A leaker can always take his story to the Globe and Mail in Canada, or the BBC in England, or The Age in Australia, or the New Zealand Herald. And that's just the Anglophone nations. Deutsche Welle and the Frankfort Allegemeine Zeitung both have English editions.

In the eighteenth century, this kind of thing was called "colportage," or "peddling." (*) Contraband books (eg. Rousseau) were printed in Geneva or Amsterdam, and then smuggled into France, along with a steady flow of other contraband items (salt, wine, coffee, etc., evading customs duties).

(*) The literal translation is of course even more evocative. The equivalent British term was "Free Trading," as practiced by the Hawkhurst Gang in Sussex.

Rob Willis - 5/15/2006

The author also never mentions the greater dynamics over time. The modern "old" press has become less interested in accepting the grave responsabilities that attend the rights they so loudly claim. Instead, they have adopted a "everything goes" philosophy that has led them into such poor reporting that the factual error scandals have been particulary embarassing of late. But far worse, this current group seems incapable of seeing that their selfish need to claim a scoop is destroying our ability to defend ourselves, something the press during WW1 would have been able to see even on a bad day. During WW2, the press understood that they couldn't print everything they knew, nor did they want to. They were Americans who took their constitutional role seriously. Much of the current crop does not. In fact, I believe that there are so-called journalists who should not only be jailed, but tried for treason. The life of my family has just been repeatedly compromised in the Terror War by this handful of political hacks. They no longer deserve the protections of the first amendment.

John H. Lederer - 5/15/2006

The author seems to assert that the press may, indeed, ought, proceed against the law even after a court decision that what they are doing is illegal.

If true, would that imply I could assert my "citizen's right" to shoot the press on sight, even after a court decision that what I am doing is illegal?