It was ten years ago this week that I was writing test posts and putting final touches on the site that would officially launch as PressThink on September 1, 2003. It started with this introduction. The key lines:

I am a press critic, an observer of journalism’s habits, and also a writer trying to make sense of the world. I am interested in the ideas about journalism that journalists work within, and those they feel they can work without. I try to discover the consequences in the world that result from having the kind of press we do.

I call this blog PressThink because that’s the kind of work I do. The title points to forms of thought that identify “journalism” to itself— but also to the habit of not thinking about certain things. The subatomic force that holds the pack of reporters together as they swarm around a story, there’s an example of pressthink. Without it there could be no pack; the pieces would come flying apart.

So that’s who I am, and what I do, and what interests me. But who are you and what do you do and what interests you enough to show up here occasionally and read these posts? I am borrowing this idea from the excellent science blogger, Ed Yong, who once a year asks readers of his site to de-lurk— that is, introduce themselves, and perhaps say a bit about why the come back. So if you’re willing, hit the comment button and de-lurk yourself.

Meanwhile, over the next few days I am going to post some reflections on ten years of blogging as they occur to me, which means I will also be able to answer questions posted in the comments if you have them. The first one is below:

1. How has doing this blog affected your career?  Last night on Twitter, after I mentioned it had been ten years, Joey Baker asked me how blogging has affected my academic and writing careers. I had never asked myself that, though I always knew that starting PressThink was a huge, life-changing plus. But once Joey asked me of course I started thinking about it.

The biggest effect comes down to the language I find myself within. Everyone is shaped by the language they habitually speak; but with writers it is a lot more so. Blogging forced me to find a language — a writing style — that would include (meaning: not repel) any of the following because blogging showed me that all of the following were possibly interested.

* Working journalists, any kind. (Like, say, Janine Gibson, but there are many more)
* Peers in the press commentary game. (Like, say, Margaret Sullivan, but there are many more…)
* Bloggers whose blogging verges on journalism or comments on the news. (Like Marcy Wheeler)
* Academics interested in the press and its behavior, whatever their discipline. (Like Brad Delong)
* Journalism students or others hoping to make a career of it. (Like Peter Sterne)
* Non-journalists who have to deal with the press as part of their job. (Like Shel Israel)
* People deeply engaged in politics who have to contend with the power of the media. (Like Anne Marie Slaughter)
* Heavy users of journalism, simultaneously fascinated and dissatisfied with the product. (Like Stuart Zechman)
* Ordinary readers who sense that something is amiss. (Like… you!)
* The denizens of digital culture — geeks — who recognize what is shifting in news production. (Like Jillian York)
* Publishers, any kind. (Like Tim O’Reilly)
* Office-holders who have occasion to reflect on the powers of the press (like Tom Watson)
* People in other countries who feel their press is influenced by the American press (Like Mark Colvin.)

All of those people follow me on Twitter, by the way, and vice versa.

Blogging forced me to speak in a language that would always include all of them and never repel any of them. But at the same time, a blog is “the unedited voice of a person,” as Dave Winer, a huge influence on me, once said. The demands of trying to include, not necessarily “everyone,” but certainly everyone on the above list, and at the same time express myself, in an unedited (uncensored) way, the discovery of a language — an intellectual style — that could accomplish all of those things: that is how blogging affected my career, Joey Baker. It forced me to find my way within the limits of a vernacular, which meant keeping in touch with what matters about the press to all of the people in the categories I have listed.

2. Did you know this blog has a theme song? Here it is. That song, more than any other totem I can find, expresses the attitude I try to write with. I’m not saying that my posts are equal to it, only that they are influenced by it.

What about you? Who are you and what do you do and what interests you enough to show up here occasionally and read these posts? Hit the comment button and speak.

Last week, the novelist and former CIA operative Barry Eisler published one of the most important posts I have read about what’s happening to the press since the Snowden revelations began in early June. In it, he tries to explain why authorities in the UK detained Brazilian national David Miranda for nine hours at Heathrow airport and confiscated all the technology he had on him. (Miranda, as everyone following the story knows, is the spouse of The Guardian columnist Glenn Greenwald. He had been acting as a courier, bringing documents on encrypted thumb drives back and forth between Greenwald in Brazil and his collaborator, Laura Poitras, in Germany.)

Eisler’s explanation of this pivotal event is the most persuasive I have seen.

1. Sand in the gears

“Put yourself in the shoes of the National Surveillance State,” he writes. You’ve already commandeered the internet for state use and you have most of the world’s communications monitored and stored. Journalists are beginning to realize than none of their means is secure, so they’re retreating to face to face meetings, traveling backwards in technological time to evade your reach. But you find out about one of these meetings: Greenwald’s spouse is visiting Berlin. Eisler explains:

The purpose was to demonstrate to journalists that what they thought was a secure secondary means of communication — a courier, possibly to ferry encrypted thumb drives from one air-gapped computer to another — can be compromised, and thereby to make the journalists’ efforts harder and slower.

Recognizing that you can’t bring journalism to a complete halt, you try to throw sand in the gears. David Miranda was detained and questioned under a terrorism statute in Britain. What’s the connection? As Eisler says, “Part of the value in targeting the electronic communications of actual terrorists is that the terrorists are forced to use far slower means of plotting. The NSA has learned this lesson well, and is now applying it to journalists.” He writes:

To achieve the ability to monitor all human communication, broadly speaking the National Surveillance State must do two things: first, button up the primary means of human communication — today meaning the Internet, telephone, and snail mail; second, clamp down on backup systems, meaning face-to-face communication, which is, after all, all that’s left to the population when everything else has been bugged. Miranda’s detention was part of the second prong of attack. So, incidentally, was the destruction of Guardian computers containing some of Snowden’s leaks. The authorities knew there were copies, so destroying the information itself wasn’t the point of the exercise. The point was to make the Guardian spend time and energy developing suboptimal backup options — that is, to make journalism harder, slower, and less secure.

2. Working together

The day after Eisler’s post appeared, Ben Smith of Buzzfeed found out — and the Guardian then announced — that some of the Snowden documents had been shared with the New York Times, which will report in partnership with the Guardian on some NSA stories. Britain’s equivalent of the NSA, the GCHQ, had forced the Guardian editors to halt work in London on the Snowden leaks. But…

Journalists in America are protected by the first amendment which guarantees free speech and in practice prevents the state seeking pre-publication injunctions or “prior restraint”.

It is intended that the collaboration with the New York Times will allow the Guardian to continue exposing mass surveillance by putting the Snowden documents on GCHQ beyond government reach. Snowden is aware of the arrangement.

Sunday night, Ben Smith broke more news: another skilled newsroom, the investigative non-profit site, ProPublica, is also working on Snowden stories with The Guardian. This is the right move. They are trying to make journalism harder, slower and less secure by working together against you. You have to work together against them to publish anyway and put the necessary materials beyond their reach.

As I wrote in my last post, the surveillance state is global, so the struggle to report on its overreach has to move about the globe, as well. Another good sign:

In an open letter to David Cameron published in today’s Observer, the editors of Denmark’s Politiken, Sweden’s Dagens Nyheter, Norway’s Aftenposten and Finland’s Helsingin Sanomat describe the detention of David Miranda, the partner of the Guardian’s Glenn Greenwald, as harassment.

They say that the “events in Great Britain over the past week give rise to deep concern” and call on the British prime minister to “reinstall your government among the leading defenders of the free press”.

The World Association of Newspapers and News Publishers wrote a similar letter to Cameron. They understand this is a global fight. The rest of the British press is only beginning to wake up to it.

3. “Give me the box you will allow me to operate in.”

In an appearance last month on Charlie Rose, former NSA and CIA director Michael Hayden was asked about the “appropriate balance” between secrecy and transparency.

Hayden said that if it were up to him, he would “keep it all secret” because NSA could best operate that way. But: “I know I live in a modern democracy,” which won’t allow anyone to operate for long without a “national consensus” underpinning the program. You can’t have a national consensus without a national discussion, he admitted. And you can’t have such a discussion “without a significant portion of the citizenry” knowing something about what you’re doing. And so, Hayden said, he had come to accept that the NSA had to “shave points off of our operational effectiveness” in order to become “a bit more transparent to the American people.”

As a former head of the CIA and the NSA, Hayden said he understood that he would be constrained by what American democracy thought acceptable. All he wanted from Congress was clear guidance. “Tell me the box,” he said, making a square with his hands as he talked. “Give me the box you will allow me to operate in. I’m going to play to the very edges of that box.” He said he would be “very aggressive,” and probably “get chalk dust on my cleats” but still:

You, the American people, through your elected representatives, give me the field of play and I will play very aggressively in it. As long as you understand what risk you are embracing by keeping me and my colleagues in this box, Charlie, we are good to go. We understand. We follow the guidance of the American people.

Hayden’s sketch of a surveillance state properly constrained by a wary public left a few things out, of course. When the Director of National Intelligence can lie to Congress in open session and keep his job, Hayden’s system has broken down. When United States senators, alarmed about what they are told, cannot alert the American people because of secrecy requirements, Hayden’s “through your elected representatives” becomes a hollow phrase.  Over-classification makes “national consensus” impossible on its face. A “secret body of law giving the National Security Agency the power to amass vast collections of data on Americans” is not likely to generate much discussion… is it? Hayden’s descriptions sound reasonable — reasonable enough that Charlie Rose didn’t push back on them — but the behavior of the surveillance state doesn’t match up with his soothing words.

WHICH IS WHY WE NEED JOURNALISTS! In fact, we can go further. Without including in the picture an aggressive press that is free to operate without fear or coercion, the surveillance state cannot be made compatible with representative democracy. Even then, it may be impossible.

4. The establishment press is beginning to get it

Barry Eisler concluded his compelling post with this:

The authorities want you to understand they can do it to you, too. Whether they’ve miscalculated depends on how well they’ve gauged the passivity of the public.

Making journalism harder, slower and less secure, throwing sand in the gears, is fully within the capacity of the surveillance state. It has the means, the will and the latitude to go after journalism the way it went after terrorism. News stories alone are not going to make it stop. There are signs that the establishment press is beginning to get it. Sharing the work of turning the Snowden documents into news is one. David Carr’s column in today’s New York Times is another. “It is true that Mr. Assange and Mr. Greenwald are activists with the kind of clearly defined political agendas that would be frowned upon in a traditional newsroom,” Carr wrote. “But they are acting in a more transparent age — they are their own newsrooms in a sense — and their political beliefs haven’t precluded other news organizations from following their leads.”

Only if they can turn a mostly passive public into a more active one can journalists come out ahead in this fight. I know they don’t think of mobilization as their job, and there are good reasons for that, but they didn’t think editors would be destroying hard drives under the gaze of the authorities, either! Journalism almost has to be brought closer to activism to stand a chance of prevailing in its current struggle with the state.

The mood toughened just over a month ago, when I received a phone call from the centre of government telling me: “You’ve had your fun. Now we want the stuff back.” There followed further meetings with shadowy Whitehall figures. The demand was the same: hand the Snowden material back or destroy it. I explained that we could not research and report on this subject if we complied with this request. The man from Whitehall looked mystified. “You’ve had your debate. There’s no need to write any more.”

                                                                               —Alan Rusbridger, editor of The Guardian

That’s the government telling the editor of a national newspaper: Time’s up, no more of that journalism stuff! We’ll decide when there’s been enough debate. Stop now or we’ll make you stop. Rusbridger’s response: We will continue our careful reporting of the Snowden material. “We just won’t do it from London.” (The Guardian has a U.S. operation based in New York.) From Reuters:

The Guardian’s decision to publicize the government threat – and the newspaper’s assertion that it can continue reporting on the Snowden revelations from outside of Britain – appears to be the latest step in an escalating battle between the news media and governments over reporting of secret surveillance programs.

This battle is global. Just as the surveillance state is an international actor — not one government, but many working together — and just as the surveillance net stretches worldwide because the communications network does too, the struggle to report on the secret system’s overreach is global, as well. It’s the collect-it-all coalition against an expanded Fourth Estate, worldwide.

When Wikileaks first exploded onto the political scene in 2010, I wrote this about it:

If you go to the Wikileaks Twitter profile, next to “location” it says: Everywhere. Which is one of the most striking things about it: the world’s first stateless news organization. I can’t think of any prior examples of that. (Dave Winer in the comments: “The blogosphere is a stateless news organization.”)

Wikileaks was modeling the concept. Now we are seeing different expressions of it every day. “We just won’t do it from London” is one. The collaboration among Edward Snowden, an American exile living in Russia, filmmaker Laura Poitras, an American living in Berlin, and Guardian columnist Glenn Greenwald, an American living in Brazil— that’s another. A few days ago, when Greenwald’s spouse, David Miranda, was detained at Heathrow airport by the UK branch of the surveillance state, Greenwald naturally alerted The Guardian’s lawyers in the UK, but he also alerted officials in the Brazilian government, who brought pressure to bear through the foreign ministry.

This tells us something. The battle I referred to is not a simple matter of the state vs. civilians. It’s not government vs. the press, either. It’s the surveillance-over-everything forces within governments (plus the politicians and journalists who identify with them) vs. everyone who opposes their overreach: investigative journalists and sources, especially, but also couriers (like David Miranda), cryptographers and technologists, free speech lawyers, funders, brave advertisers, online activists, sympathetic actors inside a given government, civil society groups like Amnesty International, bloggers to amplify the signal and, of course, readers. Lots of readers, the noisy kind, who share and help distribute the work.

This type of sunlight coalition — large and small pieces, loosely joined — is a countervailing power to the security forces, the people who are utterly serious when they say: “You’ve had your debate. There’s no need to write any more,” the same people who, as Bruce Schneier has written, “commandeered the internet” for their use because, viewed from a certain angle, it’s the best machine ever made for spying on the population.

If sunlight coalitions are to succeed, it won’t be by outwitting surveillance. Not better technology, but greater legitimacy is their edge. This attitude was perfectly captured by Ladar Levison, founder of Lavabit, who shut down his email service when the surveillance state demanded his submission. “I think if the American public knew what our government was doing, they wouldn’t be allowed to do it anymore,” he said.

Sunlight wins when the deeds exposed turn out to lack legitimacy under the greater scrutiny they receive because of the exposure. That can only happen through open argument over known facts. The argument is always about the same thing: what is truly in the public interest, and what violates justice, decency, common sense, national conscience, the requirements of a democracy. As Rusbridger told the BBC:

“If they were to arrest David Miranda in Heathrow car park they would have to use bits of the law which have checks and balances to protect journalistic material, among other things, but by doing it in a transit lounge they are operating in a kind of stateless way where they can interrogate someone for nine hours, seize whatever they want, under rules that are about terrorism. Once you start conflating terrorism and journalism, as a country I think you’re in some trouble.”

A conspiracy to commit journalism has to operate in the open. Its methods go beyond investigation, careful editing, truth and accuracy, telling a good story that brings complex issues home. There is inescapably a political element. Release-the-information coalitions can only form around broadly shared goals. People who disagree on other things are likely to agree on the need for sunlight. Those who would expose the misdeeds of an agency like the NSA need good arguments, not just good sources and good lawyers. Not the reach but the overreach of the surveillance state should be the object of their critique. It’s not enough that your story be right on the facts. Your thinking has to be right on the money. It has to speak to ends that are almost as universal as the emotion of fear, an always-on power source for the “collect it all” consortium.

Those who would expose and oppose the security state also need good judgment. What to hold back, when not to publish, how not to react when provoked, what not to say in your own defense: alongside the forensic, the demands of the prudential. All day today, people have been asking me: why did The Guardian wait a month to tell us about, “You’ve had your fun. Now we want the stuff back?” Michael Calderone of the Huffington Post asked Rusbridger about that. His answer:

“Having been through this and not written about it on the day for operational reasons, I was sort of waiting for a moment when the government’s attitude to journalism –- when there was an issue that made this relevant,” Rusbridger said.

That moment came after Sunday’s nine-hour airport detainment of David Miranda, partner of Glenn Greenwald, the Guardian journalist at the center of the NSA surveillance story.

“The fact that David Miranda had been detained under this slightly obscure schedule of the terrorism act seemed a useful moment to write about the background to the government’s attitude to this in general,” Rusbridger said.

Hear it? The holding back. The sensation of a political opening, through which the story can be driven. The alignment of argument with information. The clear contrast between a terror anyone can identify with — being detained for nine hours while transiting through a foreign country — and the state’s obscure use of terrorism law. These are political skills, indistinguishable from editorial acumen. In a conspiracy to commit journalism we must persuade as well as inform.

After Matter: Notes, Reactions & Links

You can find all the pieces I’ve written on Snowden, the press and the surveillance state here.

Public radio’s The World interviewed me about this post. Listen here. (It’s 5:41.)

John Naughton in the UK reacts to this post: Democracy as a ‘game.’

The big question, to my mind, is whether the kind of comprehensive surveillance deemed essential by the national security state is compatible with democracy.

The answer I’m heading towards is “No”.

Former CIA agent turned novelist Barry Eisler tries to explain why David Miranda got stopped at Heathrow by the UK authorities. His answer: to make further journalism about the Snowden material more difficult. I think he’s got it.

The purpose was to demonstrate to journalists that what they thought was a secure secondary means of communication — a courier, possibly to ferry encrypted thumb drives from one air-gapped computer to another — can be compromised, and thereby to make the journalists’ efforts harder and slower.

Does this sort of “deny and disrupt” campaign sound familiar? It should: you’ve seen it before, deployed against terror networks. That’s because part of the value in targeting the electronic communications of actual terrorists is that the terrorists are forced to use far slower means of plotting. The NSA has learned this lesson well, and is now applying it to journalists.

“If you support a free press publishing leaked state secrets you are apparently condoning terrorism. If you don’t object to his detention loudly, you are condoning the secret state.” On CNN.com, former BBC executive Richard Sambrook reflects on the hardening of positions.

Social media, advocacy journalism, the need to define and claim the narrative and to be heard leaves little room for middle ground, but it is there that this conflict will be resolved. In that gray area, the ethical bridge between these positions will have to be rebuilt.

My contribution to Sambrook’s bridging project in this post:  “Not the reach but the overreach of the surveillance state should be the object of their critique.”

Mark Ambinder, national security reporter and columnist, explains his reasons to be troubled the NSA, and, in a separate column, why concerns about it are overblown: 5 reasons the NSA scandal ain’t all that. “I really do think tribal feelings determine how you view the significance of Edward Snowden’s revelations,” he writes. Conor Friedersdorf isn’t buying it.

The Press Gazette in Britain asks why newspapers in the UK are largely letting The Guardian go it alone, and not jumping fully into the fray.

“I think if the American public knew what our government was doing, they wouldn’t be allowed to do it anymore.”

Those are the poignant words of Ladar Levison, founder of Lavabit, a secure email service that he voluntarily shut down when faced with some sort of demand from the U.S. government to reveal user information. The precise nature of that demand he cannot talk about for fear of being thrown in jail, perhaps the best example we now have for how the surveillance state undoes the First Amendment. But we know that Lavabit was used by Edward Snowden to communicate with the outside world when he was stuck in the Moscow airport. So use your imagination!

If the public knew what the government was doing, the government wouldn’t be allowed to do it anymore… is a perfect description of a “Fourth Estate situation.” That’s when we need a journalist to put hidden facts to light and bring public opinion into play, which then changes the equation for people in power operating behind the veil. If it doesn’t happen, an illegitimate state action will persist. “My hope is that, you know, the media can uncover what’s going on, without my assistance,” Levison said. He’s like a whistleblower who will go to jail if he actually uses his whistle. All he can do is give truncated interviews that stop short of describing the pressure he is under.

At least one thing is clear: Snowden’s determination “to embolden others to step forward,” which I wrote about in my last post, is starting to work. Ladar Levison is proof.

This week the New York Times magazine published an amazing account of the Fourth Estate situation that Laura Poitras and Glenn Greenwald found themselves in, once they were contacted by Edward Snowden. The author, Peter Maass, included this:

Poitras and Greenwald are an especially dramatic example of what outsider reporting looks like in 2013. They do not work in a newsroom, and they personally want to be in control of what gets published and when. When The Guardian didn’t move as quickly as they wanted with the first article on Verizon, Greenwald discussed taking it elsewhere, sending an encrypted draft to a colleague at another publication. He also considered creating a Web site on which they would publish everything, which he planned to call NSADisclosures. In the end, The Guardian moved ahead with their articles. But Poitras and Greenwald have created their own publishing network as well, placing articles with other outlets in Germany and Brazil and planning more for the future. They have not shared the full set of documents with anyone.

The idea of the press as the “fourth estate” is usually traced to English historian Thomas Carlyle (1795-1881.) Here he is, writing at a time when journalists were newly arrived on the political stage:

Burke said there were Three Estates in Parliament; but, in the Reporters’ Gallery yonder, there sat a Fourth Estate more important than they all. It is not a figure of speech, or a witty saying; it is a literal fact. Printing, which comes necessarily out of Writing, I say often, is equivalent to Democracy: invent Writing, Democracy is inevitable. Whoever can speak, speaking now to the whole nation, becomes a power, a branch of government, with inalienable weight in law-making, in all acts of authority. It matters not what rank he has, what revenues or garnitures: the requisite thing is that he have a tongue which others will listen to; this and nothing more is requisite.

Whoever can speak to the whole nation becomes a power. It used to be that the only way to “speak to the whole nation” was through the major media channels that reached everyone. The Fourth Estate became the editors and reporters who worked in Big Media newsrooms. But as Peter Maass pointed out, Poitras and Greenwald don’t operate that way. They make alliances with the press establishment to get their stories out. If necessary, they will go it alone. Greenwald raises his own money from readers who support what he does, as he explained in a June 4th column in The Guardian:

Ever since I began political writing, I’ve relied on annual reader donations to enable me to do the journalism I want to do: first when I wrote at my own Blogspot page and then at Salon. Far and away, that has been the primary factor enabling me to remain independent – to be unconstrained in what I can say and do – because it means I’m ultimately accountable to my readers, who don’t have an agenda other than demanding that I write what I actually think, that the work I produce be unconstrained by institutional orthodoxies and without fear of negative reaction from anyone. It is also reader support that has directly funded much of the work I do, from being able to have research assistants and other needed resources to avoiding having to do the kind of inconsequential work that distracts from that which I think is most necessary and valuable.

For that reason, when I moved my blog from Salon to the Guardian, the Guardian and I agreed that I would continue to rely in part on reader support. Having this be part of the arrangement, rather than exclusively relying on the Guardian paying to publish the column, was vital to me. It’s the model I really believe in.

This was the last thing he wrote for the Guardian before the Snowden story took over his life, but he dropped a hint of what was coming. “I’ve spent all of this week extensively traveling and working continuously on what will be a huge story: something made possible by being at the Guardian but also by my ability to devote all of my time and efforts to projects like this one.”

The point I’m driving at is not that the institutionalized press is no longer needed, or no longer powerful. Greenwald clearly benefits from being a Guardian journalist. The Guardian has other reporters it can put on the story. It has editors to save writers from errors and misjudgments. It pays for plane tickets and lawyers. It has global reach. These are huge advantages.

But people who find themselves in a Fourth Estate situation — “If the public knew what power was doing, power would not be allowed to do it anymore” — have power themselves now. If they have the goods, if they have the will, if they have “a tongue which others will listen to,” they can speak to the nation. And some will! The Fourth Estate is really a state of mind. Some in the press have it, some don’t. Some who have it are part of the press. Some, like Ladar Levison and Edward Snowden, are not.

A Fourth Estate situation has its own strange and radiating power. People caught up in one will take enormous risks. They will sacrifice their freedom. They will crash the company they spent years building. They will defy the state. They will do a lot to bring the hidden facts to light. Working together, sources, journalists and readers may soon publish a blockbuster story without the institutional press being involved at all.

Again, I’m not saying we don’t need The Guardian, the New York Times, the Washington Post, Der Spiegel, El País, O Globo, the BBC, the CBC, the Australian Broadcasting Corporation. We definitely do. But they are not the Fourth Estate. If the public knew what the government was doing, the government wouldn’t be allowed to do it anymore. Everyone who tries to act on that tense situation: they, together, are the Fourth Estate. (Senator Ron Wyden, for example.)

I believe Bruce Schneier was correct when he wrote in the Atlantic this week that the U.S. government has “commandeered the internet.” He urged the big technology companies to fight back. But even if they don’t, others will. And when they make that decision, they will pick up the tools of journalism and try to alert the public. If the press won’t help them, they will go it alone. Wise professionals in journalism will understand this, and select accordingly.

In exchanges with Washington Post reporter Barton Gellman prior to his name becoming public, Edward Snowden said something that got overlooked.

Whistleblowers before him, he said, had been destroyed by the experience. Snowden wanted “to embolden others to step forward,” he wrote, by showing that “they can win.”

It’s not enough to defy the government and reveal what it wants to keep secret. When you go up against the most powerful and secretive forces on the planet, you have to try to win. It sounded kooky at first, or completely outrageous, but after President Obama’s August 9th press conference it was difficult to deny that Snowden had won— not a complete but still a significant victory.

Congress had woken up to its oversight responsibilities and was finally debating the limits of the surveillance state. Lawmakers in both parties were advertising their doubts. Other parliaments around the world were asking questions they had not asked before. The President had been forced to respond with an announcement of some (tepid) reforms and a press conference intended to restore public confidence after the Snowden effect flipped the polls around. (Link.) When Obama tried to argue that he had been ahead of the game on transparency and the protection of whistleblowers and would have wound up in the same place without Snowden’s actions, it was hard to imagine anyone in the know buying it. As The Economist said:

Mr Obama laments that the debate over these issues did not follow “an orderly and lawful process”, but the administration often blocked such a course. For nearly five years it appeared comfortable with the secret judicial system that catered to executive demands. It prized the power to spy on Americans, and kept information from Congress. Mr Snowden exposed all of this. His actions may not have been orderly or lawful, but they were crucial to producing the reforms announced by Mr Obama.

On Meet the Press Sunday, the talkers talked about it. First question from David Gregory: “Has Edward Snowden won?” Watch:

Visit NBCNews.com for breaking news, world news, and news about the economy

On Meet the Press they also talked about the sale of the Washington Post to Amazon.com founder Jeff Bezos. But they did not try to connect the two stories, even though one of the living connections — Barton Gellman, who writes for the Post and was contacted by Snowden — was on the program.

…Bart Gellman, the kind of work you do requires not only sources deep inside the intelligence community, but editors and owners who are willing to defy the government and publish over its strongest objections. If you had been able to talk to Jeff Bezos before he bought the Washington Post, what would you have told him to expect about this part of the job– publishing the secrets his reporters dig up? 

David Gregory didn’t ask Gellman that, but he could have. For one of the biggest unknowns in the story of Bezos taking over the Post has nothing to do with adapting to the internet or finding a new business model for newspapers. It’s whether Bezos has the inner strength to go up against the most powerful and secretive forces on the planet. When his free press moment comes — and it will come — will Jeff Bezos answer the bell?

It came for the New York Times and the Washington Post in 1971 with publication of the Pentagon Papers, a case that went to the Supreme Court and could have been lost, with enormous consequences for press freedom in the United States. It came for the Post again during Watergate, with Nixon threatening the company and Attorney General John Mitchell making his famous declaration. (“Katie Graham’s gonna get her tit caught in a wringer.”) It came for the Times again when James Risen and Eric Lichtblau uncovered warrantless wiretapping by the Bush Administration before the election in 2004, although in a fateful decision the Times didn’t publish the story until 2005.

When you read retrospective accounts of those decisions, what stands out is the nerve of the publishers as the government brings its might down and an almost unimaginable pressure builds. (And don’t think it hasn’t been felt in The Guardian’s offices lately.)

Through his company, Amazon, Jeff Bezos is already enmeshed in the surveillance state. One sign of that: Amazon’s $600 million deal to build cloud computing infrastructure for the CIA. Another was reported by the Post in its profile over the weekend:

As chief of Amazon, Bezos has also confronted some First Amendment issues, maybe most prominently in its handling of a situation involving WikiLeaks.

In November 2010, WikiLeaks began using Amazon’s Web hosting service to leak thousands of pages of State Department cables. But the company abruptly terminated the contract within 24 hours of receiving a call from a staff member for the Senate Homeland Security and Governmental Affairs Committee.

In a statement at the time, Amazon said WikiLeaks was expelled from its site because it violated the terms of its agreement with the company, not because of “a government inquiry.”

That’s not answering the bell for freedom of information. That’s doing what the surveillance state requires, and relying on a legalism to justify it. This is exactly the kind of behavior Edward Snowden was reacting against when he made his decision to go AWOL and reveal key documents to The Guardian and the Washington Post.

“The public needs to decide whether these programs and policies are right or wrong,” he said in the interview that introduced him to the world. It’s true, as his many critics contend, that Snowden made that call — the public must decide this, and therefore has to know about it first — on his own, without legal authority, simply because he thought it right. The only way he could win was to later be found correct in his assessment: that if the public knew, the surveillance state would be unable to defend the lengths to which it had gone.

If Jeff Bezos owns the Washington Post for, say, twenty years, he will probably have to make a call like that. On his own. Without legal authority. Simply because he thinks it right. “Not the state but the public gets to decide this.” It may also be an icy gamble with the business, as Katharine Graham’s decisions were when she had to make them. No firewall between the Post and Amazon will necessarily be respected when the most powerful hidden hands in the world are motioning for you to back down.

We don’t know what Bezos will do. Neither does he. If, as is often said about him, he thinks long term, then he will answer that bell, and come out swinging. But that is not the test. The test is to know your strength, cooly survey the situation, and find a way to win.

After Matter: Notes, Reactions & Links

“I think if the American public knew what our government was doing, they wouldn’t be allowed to do it anymore.” These are the poignant words of Ladar Levison, founder of Lavabit, the secure email service that he voluntarily shut down when faced with some sort of demand from the U.S. government to reveal user information— which he cannot talk about for fear of being thrown in jail. But we know that Lavabit was used by Snowden to communicate with the outside world when he was stuck in the Moscow airport.

If the public knew what the government was doing, it wouldn’t be allowed to do it anymore. That is a perfect description of a Fourth Estate situation, where the only way democracy can work is if the press uncovers the truth and publishes it, bringing public opinion into play and changing the equation for people in power. If the press cannot come through and perform the way it should, the public will remain in the dark, and an illegitimate state action will persist. “My hope is that, you know, the media can uncover what’s going on, without my assistance,” Levison said. He’s like a whistleblower who will go to jail if he uses his whistle. All he can do is give truncated interviews. But it’s clear that Snowden’s determination “to embolden others to step forward” is working. Ladar Levison is proof.

All PressThink posts about Edward Snowden, journalism and the surveillance state

* Politics: some / Politics: none. Two ways to excel in political journalism. Neither dominates. (June 13, 2013) “Edward Snowden’s decision to leak to Greenwald, and Glenn’s domination of newsland for several days, tells us that politics: none is not the only way of excelling in journalism. It now has to share the stage with politics: some.”

* No, Candy Crowley. That is not good enough. (June 16, 2013) “You have to know your stuff. You have to mute your instinct to reduce everything to the next election. This is serious business. We need interviewers who are dead serious about holding people accountable.”

* David Gregory tries to read Glenn Greenwald and The Guardian out of the journalism club  (June 24, 2013.) “His premise packs a punch. For the criminalization of journalism is most likely to happen when normal relationships with sources get called ‘aiding and abetting’ by the state.”

* The Snowden effect: definition and examples. (July 5, 2013) “There’s what Snowden himself revealed by releasing secrets and talking to the press. But beyond this, there is what he set in motion by taking that action.”

* The Toobin principle. (August 6, 2013) “Repeal the concept of an informed public, repress your decision to take such a drastic step. But it’s not just Jeffrey Toobin. Congress did it too.”

* Edward Snowden, meet Jeff Bezos. (August 11, 2013) “What we do know about Snowden is something we don’t know about the new owner of the Washington Post: whether he can go up against the most powerful and secretive forces on the planet… and win.”

* When you’re in a Fourth Estate situation. (August 15, 2013) “As things stand today, the Fourth Estate is a state of mind. Some in the press have it, some don’t. Some who have it are part of the institutional press. Some, like Ladar Levison and Edward Snowden, are not.”

* Conspiracy to commit journalism. (August 20, 2013) “If sunlight coalitions are to succeed, they won’t succeed by outwitting surveillance. Not better technology, but greater legitimacy is their edge.”

* To make journalism harder, slower, less secure. (August 26, 2013) “That’s what the surveillance state is trying to do. It has the means, the will and the latitude to go after journalism the way it went after terrorism. Only a more activist press, working together, stands a chance of resisting this.”

* The NSA’s next move: silencing university professors? (The Guardian, September 10, 2013) “A Johns Hopkins computer science professor blogs on the NSA and is asked to take it down.”

* The BBC’s 16 questions to Glenn Greenwald. “Hey, that was a tough interview! No, not really.” (PressThink, Oct. 4, 2013)

* Why Pierre Omidyar decided to join forces with Glenn Greenwald for a new venture in news. “Word leaked out that Glenn Greenwald would be leaving the Guardian to help create some new thing backed by Pierre Omidyar, the founder of eBay. I just got off the phone with Omidyar. So I can report more details about what the new thing is and how it came to be.” (PressThink, Oct. 16)

* The limits of investigative reporting. “How two media accounts of the intrusive security state led to different political outcomes.” (American Review, Oct. 25, 2013.)

Photo credit: mattopenzeo, Creative Commons.

Last week on his CNN program Piers Morgan had just about finished a little speech on how you can’t have any bloke with a security clearance spewing classified information “on a whim” when James Risen, national security reporter for the New York Times, interrupted him: which document that’s come out don’t you want to talk about? Meaning: which of the things we’ve learned from Edward Snowden would you, as a journalist, prefer not to know? Which part of the surveillance story that’s come to light should have remained in darkness?

It was a good question. Piers Morgan did not have much of a reply.

When, on the same program, Jeffrey Toobin of the New Yorker said that public discussion about previously classified materials was “a good thing” but he still thought Edward Snowden was a criminal and shouldn’t have done what he did, Risen interrupted: “We wouldn’t be having this discussion if it wasn’t for him,” he said. “That’s the thing I don’t understand about the climate in Washington these days, is that people want to have debates on television and elsewhere, but then you want to throw the people who start the debates in jail.”

It was a sharp observation. Jeffery Toobin didn’t have much of a reply.

The exchange begins at 7:30 on the clip below:

Ever since The Guardian began to publish its revelations from the files of Edward Snowden, I have been trying to frame the unanswered question that drives my own interest in the subject.

Disclosure: I am not pro-Snowden or anti-Snowden, because to put it that way unnecessarily personalizes the issue. I am not “for” the National Security Agency or against it. As a U.S. citizen I am implicated in what the NSA does, and I want it to succeed in discovering those who would harm us. My concern, as a writer and journalism professor, is with another fight: the one for public knowledge, for sunlight, for the facts to come out so we know what’s going on. I am primarily interested in the journalism that Edward Snowden has set in motion, and the gains in public knowledge that have resulted from his actions, which I have called the Snowden effect.

The question that bothers me most can be put this way:

Can there even be an informed public and consent-of-the-governed for decisions about electronic surveillance, or have we put those principles aside so that the state can have its freedom to maneuver?

I call it unanswered but it’s more than that. It’s like we can’t face it, so we choose not to frame it that way. The question is less unaddressed than it is repressed by a political system that can’t handle the weight of what it’s done. But now that system is being forced to face what happened while it wasn’t looking— at itself. I will show you the problem by quoting four writers who have touched on it. Apologies for the long quotes. But if you can follow me through them, there will be a payoff (in pressthink) at the end.

1. Everything from everybody

Fred Kaplan is on the war and peace beat for Slate. (He also has a PhD in political science.) Here he explains “how the NSA traveled down a slippery slope.”

“At first, they focused on tracking traffic patterns. Some phone number in the United States was calling suspicious people or places in, say, Pakistan. It might be useful to find out whose phone number it was. It might then be useful to find out what other people that person has been calling or emailing, and then it might be useful to track their phone calls and email patterns. Before you know it, they’re storing data on millions of people, including a lot of Americans. Then maybe one day, they track someone—a phone number or email address they’d never come across before—engaged in some very suspicious activity. They wish that they’d been tracking this person for some time, so they could go back and see if a pattern exists without having to wait for one to emerge. Then they learn that they can do this; new technology makes it possible. So they scoop up and store everything from everybody. They even convince themselves that they’re not ‘collecting’ data from American citizens (as that would be illegal); no, they’re just storing it; the collecting doesn’t happen until they actually go retrieve it from the files.”

Somewhere on the slope it slid down, the NSA realizes it has to get legal authority to collect it all. Kaplan explains:

The catch, as we now know, is that all of this—the ever-expanding surveillance in time and space, the reasoning behind it, and the FISA court ruling that approves it—has evolved at such high levels of secrecy that only a handful of people in Congress (very few people anywhere outside the NSA, and probably not all that many inside) know anything about it. This, it turns out, is what [Ron] Wyden, a member of the Senate Intelligence Committee, meant when he cryptically said, way back in October 2011, that “there are two Patriot Acts in America”—the one that anybody can read and a “secret interpretation that the executive branch uses” but that nobody on the outside knows about at all. The public Patriot Act allows “bulk” collection of data; the secret interpretation defines “bulk” far more bulkily than anyone could have imagined.

“They scoop up and store everything from everybody.” The American public didn’t know about that. The American people never voted for that. It’s doubtful that, sufficiently informed, public opinion would consent to that. Even so, it’s possible to argue that “consent of the governed ” was maintained because key committees in Congress were informed. Congress also created the FISA court and gave it these powers.

But that’s not enough. “Blind” consent can easily be abused. The only possible check on that is public knowledge and open debate. Not for everything, of course (there have to be secrets) but for really big things like “scoop up and store everything from everybody.” Not consent at some point in the process but informed consent for big decisions throughout the process: that is the check. It’s impossible when everything is done in secret, which is why Kaplan says: “The program was supposed to have checks and balances, but really it doesn’t.”

2.  A discussion the public cannot afford to have. 

Will Wilkinson in The Economist picks up the story from there. He’s more alarmed than Kaplan.

You see, democracy here at home must be balanced against the requirements of security, and it is simply too dangerous to leave the question of this balance to the democratic public. Open deliberation over the appropriate balance would require saying something concrete about threats to public safety, and also about the means by which those threats might be checked. But revealing such information would only empower America’s enemies and endanger American lives. Therefore, this is a discussion Americans can’t afford to have. Therefore, the power to determine that this is a discussion the public cannot afford to have cannot reside in the democratic public. That power must reside elsewhere, with the best and brightest, with those who have surveyed the perils of the world and know what it takes to meet them. Those deep within the security apparatus, within the charmed circle, must therefore make the decision, on America’s behalf, about how much democracy—about how much discussion about the limits of democracy, even—it is safe for Americans to have.

A “discussion the public cannot afford to have” repeals the principle of an informed citizenry. But the decision to let things evolve in that way was hidden from public view. Those who wanted to show it to us were prevented from doing so– or prosecuted in the case of some whistle blowers. Wilkinson:

It is crucial, then, that any attempt by those on the inside to reveal the real, secret rules governing American life be met with overwhelming, intimidating retaliation. In order to maintain a legitimizing democratic imprimatur, it is of course important that a handful of elected officials be brought into the anteroom of the inner council, but it’s important that they know barely more than that there is a significant risk that we will all perish if they, or the rest of us, know too much, and they must be made to feel that they dare not publicly speak what little they have been allowed to know. Even senators. Even senators must fear to describe America’s laws to America’s citizens.

An informed public is not really possible under those conditions. And yet those conditions were approved by elected representatives. But they never shared with the voters what they were doing. Some in Congress realized the problem but they were helpless to do anything about it.

3. Free to mislead us.

Here’s Timothy Edgar, a lawyer who was on the inside (he worked for the Director of National Intelligence) writing in the Wall Street Journal.

The FISA court may have reviewed the programs, but the public never got its day in court. The ACLU has challenged the constitutionality of NSA surveillance programs for years, but that case never got to the issue of constitutional rights. The intelligence community argued, and the Supreme Court agreed, that the civil-liberties groups couldn’t maintain their lawsuit. Civil-liberties advocates represented a variety of people with entirely reasonable fears of monitoring. Whether they were actually under surveillance was a secret (and properly so). The government argued vigorously that this secrecy meant the case could not go forward, and the court agreed.

Aye: “The public never got its day in court.” As with the legal system, so with the Congress. Open debate never got its chance. Edgar :

Sens. Ron Wyden and Mark Udall encountered a similar Catch-22 in 2011 when trying to raise questions about the NSA call-records program, when the Patriot Act was up for review. Although they were briefed on the program behind closed doors, they made no headway in arguing for greater transparency with the public. The resulting debate was highly skewed. Administration officials were free to make misleading arguments that the Patriot Act was just like an ordinary subpoena. Any member of Congress willing to spend a few hours in a small room in the Capitol knew that secret court opinions had approved collection that reached far wider than any subpoena. Those who did know about the opinions could not express any concerns in open debate. Secrecy prevented the Congress, like the Supreme Court, from having a real argument over surveillance powers.

No real argument = zero possibility for informed consent. Administration officials who are free to mislead are liberated from the check that a free press and an inquisitive Congress are supposed to provide. A democracy that is not permitted to know the “secret rules” adopted by the state cannot operate properly. Will Wilkinson thinks the whole system is illegitimate, a sham. Timothy Edgar thinks the public would approve if it knew more about the safeguards in place. Fred Kaplan is somewhere in the middle; he thinks the NSA is in trouble, and recommends reforms. But they all agree that the necessary checks and balances had disappeared.

These include an informed public. That principle had been repealed for scrutiny of the surveillance state. But no one ever put it that way. And they still don’t. It was too big to face, so bit-by-bit a decision was made not to face it. Repressed is the right word for that.

4. A choice not to be informed.

Edward Snowden is the return of the repressed. By going AWOL and leaking documents that show what the NSA is up to, he forced Congress to ask itself: did we really consent to that? With his disclosures the principle of an informed public roared back to life. Writing at MSNBC.com about documents de-classified by the Director of National Intelligence in advance of his testimony before the Senate, Adam Serwer puts it all together:

The reports affirm that the current backlash in Congress is a product of public knowledge of the programs. Some legislators, like Democratic Sens. Ron Wyden of Oregon and Mark Udall of Colorado, had been making public statements for years that hinted at information members of Congress were being told in private. Legislators who say they were ignorant about how the authorities were being used prior to the revelations effectively made a choice not to be informed. They then voted to reauthorize these laws without knowing what they actually did. Those legislators who were exercising their oversight responsibilities and were concerned about surveillance couldn’t inform the public in detail about what was happening. Far from affirming the Obama administration’s insistence that congressional oversight serves as a key check on executive branch authority, it mostly raises the question of whether effective oversight can be conducted in secret.

Some in Congress “made a choice not to be informed.” Those who tried to exercise oversight were prevented from informing the rest of us. (But Bruce Ackerman says they could have busted through that.) Then Snowden came along and blew everything up. Adam Serwer comments:

Absent former NSA contractor Edward Snowden’s leaks to The Guardian and the Washington Post that sparked the controversy, the current debate over surveillance powers wouldn’t even be happening. As long as the information was secret, legislators could renew these authorities without having to worry about a public backlash. It was only the leaks that spurred Congress into doing its job. That leaves legislators pushing to curtail government surveillance powers in the awkward position of owing their political momentum to a man the Obama administration wants extradited and prosecuted for espionage.

Right. It’s the same contradiction Jeffrey Toobin of CNN is caught in. He doesn’t think Snowden should have done what he did. But Toobin does think the debate that Snowden started “is a good thing.” When James Risen pointed this out (“We wouldn’t be having this discussion if it wasn’t for him”) Toobin — mindlessly — agreed. “That’s true,” he said. (It’s at 8:15 on the clip.) At this point Toobin has no idea what he’s saying. The only coherent position available to him is to argue for the repeal of an informed public: “Piers, this debate we’re having right now, it’s a bad thing!”

But he doesn’t have the courage or self-awareness required to say that on television. At some point he internalized the idea of a “discussion the public cannot afford to have,” then repressed any memory of having done that. That’s why he welcomes a debate that he would also welcome the prevention of. But Congress did the same thing. So did President Obama. The Toobin principle: repeal the concept of an informed public, repress your decision to take such a drastic step because it’s too much to face.

Let me go back to my unanswered question:

Can there even be an informed public and consent-of-the-governed for decisions about electronic surveillance, or have we put those principles aside so that the state can have its freedom to maneuver?

People who make a career in journalism cannot pretend to neutrality on a matter like that. If a free society needs them — and I think it does — it needs them to stand strongly against the eclipse of informed consent.

After Matter: Notes, Reactions & Links

Over at the Atlantic site, Conor Friedersdorf builds upon this post by going back to look at how the debate over, and news coverage of the re-authorization of the Patriot Act in 2011 was disabled by secrecy. This made informed decision-making and genuine public opinion impossible.

Even those elected representatives informed about the full extent of government surveillance were deprived of normal legislative practices, like floor debate, letters and phone calls from constituents, input from experts outside government, and public opinion polls, that properly factor into their typical deliberation and voting decisions.

That’s it, exactly, Conor.

Security and privacy expert Bruce Schneier writes on the virtually the same subject I addressed here:

Both government agencies and corporations have cloaked themselves in so much secrecy that it’s impossible to verify anything they say; revelation after revelation demonstrates that they’ve been lying to us regularly and tell the truth only when there’s no alternative.

There’s much more to come. Right now, the press has published only a tiny percentage of the documents Snowden took with him. And Snowden’s files are only a tiny percentage of the number of secrets our government is keeping, awaiting the next whistle-blower.

Ronald Reagan once said “trust but verify.” That works only if we can verify. In a world where everyone lies to us all the time, we have no choice but to trust blindly, and we have no reason to believe that anyone is worthy of blind trust. It’s no wonder that most people are ignoring the story; it’s just too much cognitive dissonance to try to cope with it.

That’s why I used the word “repressed.”

Ars Technica asked Schneier (“one of the world’s foremost cryptographers”) what he would do to fix the problems with trust and verification:

The way Schneier sees it, in an attempt to keep the operational details of the targets secret, the NSA (and presumably other intelligence agencies, too) has also claimed that it also needs to keep secret the legal justification for what it’s doing. “That’s bullshit,” Schneier says.

The famed computer scientist wants to apply traditionally open and public scrutiny to how the NSA operates.

“How much does this stuff cost and does it do any good?” he said. “And if they can’t tell us that, they don’t get approved. Let’s say the NSA costs $100 million annually and that an FBI agent is $100,000 a year. Is this worth 1,000 FBI agents? Or half and half? Nowhere will you find that analysis.”

When the CEO and editor-at-large of Foreign Policy magazine is saying: it took me a while, but now I see why Snowden was necessary… it means the elites in Washington are waking up to something big.

Eugene Robinson of the Washington Post did D.C. residents a big favor earlier this week when he courageously acknowledged the service Edward Snowden did for the United States… and for the global debate on rights and privacy in the big data era. I have myself been too slow to recognize that the benefits we have derived from Snowden’s revelations substantially outweigh the costs associated with the breach. It is time we move from the kind of Patriot Act thinking that overstates security threats to such a degree that we subordinate our basic freedoms to something more consistent with our historical systems of checks and balances.

Law professor and former Assistant Attorney General Jack Goldsmith on a theme similar to the one I explore here:

Presumptively in our democracy, important national policies are vetted in public, subject to criticism and analysis in the press and by elected representatives and civil society and courts, and ultimately approved, or not, by the People in elections. The accountability system forces public officials to justify their actions, to address criticisms, to confront new and critical information and arguments, to consider new approaches, and to correct mistakes. This messy process does not always produce optimal policies. But it produces pretty good policies on the whole, allows for pretty robust policy change in light of new information, and in any event is a more legitimate system for executing public policy than one that takes place in secret.

Few of the traditional elements of democratic scrutiny and deliberation apply to the NSA. Even after the Snowden affair, NSA and its oversight bodies remain extraordinarily secretive.

In a guest post at TechDirt, Jennifer Hoelzer, a former staffer for Senator Ron Wyden, provides enormous detail on how for years he was prevented from informing the public about where the surveillance state had gotten to in the U.S. It is quite a tale.

Matt Welch of Reason magazine on the Obama Administration observance of the Toobin principle:

We are totally ready to have this conversation we have been actively trying to suppress, we are being transparent in our non-transparency, and in the name of openness and deliberation we must smother this attempt at open deliberation.

At ThinkProgress, Zack Beauchamp responds to this post, usefully: A Guide To Thinking About NSA Surveillance And Democracy.

Josh Stearns adds further background and fleshes out the argument in this post. Stearns reminded me of this: “My sole motive,” Edward Snowden told the Guardian in his first public interview, “is to inform the public as to that which is done in their name and that which is done against them.”

“A grandiose narcissist who deserves to be in prison.” Jeffery Toobin on Snowden in June:

The American government, and its democracy, are flawed institutions. But our system offers legal options to disgruntled government employees and contractors. They can take advantage of federal whistle-blower laws; they can bring their complaints to Congress; they can try to protest within the institutions where they work. But Snowden did none of this. Instead, in an act that speaks more to his ego than his conscience, he threw the secrets he knew up in the air—and trusted, somehow, that good would come of it. We all now have to hope that he’s right.