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Interview: Technology Can Expand Free Speech But Threatens Our Right To Be Left Alone

Judge Mark Wolf

Judge Mark Wolf

How have fundamental rights like free speech and privacy been affected by the advent of new technologies? RFE/RL correspondent Brian Whitmore spoke to Senior U.S. District Judge Mark Wolf about striking the delicate balance between liberty, security, and privacy in the age of WikiLeaks and global terrorism.

RFE/RL: I wanted to start with a broad question. There's an ongoing debate in the United States and elsewhere about how technology, the Internet, social media etc., are going to affect civil liberties. In many ways these things empower citizens. But in others, they increase the capabilities of the state. How do you see this playing out in general? And in the U.S. context, how do they influence citizens' First Amendment rights to free speech and Fourth Amendment rights to privacy?

Mark Wolf:
I think you've described a genuine dilemma. The first time I came to Central and Eastern Europe, I said to a wonderful Slovak journalist who had a prestigious fellowship at Harvard, "the Internet is wonderful. " She said, "perhaps, but it scares me greatly because now my government can monitor my telephone and e-mail communications -- my activities -- in a way they never could before." Now I think both of these things are true and it really requires careful attention and a certain amount of political will to maximize the way the Internet is used for free expression and minimize the way it is used to interfere with privacy and to inhibit free speech. There is also another competing set of considerations. The Internet does magnify people's ability to speak. But it has also eroded institutional media that has long served as a learned intermediary. When the Pentagon Papers were turned over to "The New York Times" and "The Washington Post, " editors read them and carefully balanced, in their professional judgment and wisdom, what was important for the American people to hear and what would be genuinely damaging to national security or perhaps threatening to the safety of a particular person. Now, when [WikiLeaks founder] Julian Assange just puts everything out on the Internet, that learned intermediary is lost and nobody is doing the balancing between those twin legitimate competing interests of the public's right to know and certain things that could be kept secret because of national security or the personal security of people working as spies, for example.

RFE/RL: Do you think what is going on today represents a qualitative change? We've had media revolutions before, from Johannes Gutenberg's invention of the printing press to the advent of television in the 1950s. Is this just another change or is something fundamentally new happening here?

It's evolutionary, but I think it is qualitative. It takes what have traditionally been issues and challenges us to confront them in an entirely new technological context. My judicial hero in the United States, Louis Brandeis [a prominent U.S. Supreme Court Justice from 1916-39] used to say, "'we have to struggle in each generation to truly possess what we have inherited." You mentioned the first and fourth amendments [to the U.S. Constitution]. From the first amendment we inherited our founders' dedication to ensuring free speech and from the fourth amendment we inherited their dedication to protecting the right Brandeis called the most fundamental -- the right to be left alone. But now, this new technology can expand free speech, but greatly threaten our right to be left alone. The courts and the people through the political process are going to have to be engaged to strike the balance in this new technological age.

RFE/RL: There has been a lot of news lately about the U.S. government eavesdropping on citizens' telephone conversations and Internet activity. But for the average person, the most common form of snooping comes not from the government, but from private corporations. Anybody who has done a Google search and then been deluged with advertisements for whatever they were searching can attest to this. How can citizens' rights to free expression and privacy be protected under these conditions?

You've raised an excellent and challenging question. The first and fourth amendment define what the government can do. But the values they protect are now threatened by private organizations as well as by the state. There could be a regulatory regime, through statutes in the United States. But really, it would have to be an international regime to decide some of these issues. For example, as I understand it, Google decides what can be communicated through Google. So Jeffrey Rosen of the "New Republic" went to see who is making these decisions. What will be censored and what will not? And he found a big room of people who are about 21-years-old in T-shirts and flip flops deciding what could go on Google and what could not. They were under the supervision of people who were about 27 years old and who had gone to law school. Should we be relying exclusively on these companies? These are issues. I don't have answers. Google and Yahoo want to do business in China or Russia. And they might agree on restrictions of freedom of expression, including the expression of American citizens in China. It's a vexing dilemma that is going to challenge us nationally and internationally to wrestle with these issues and establish some regime that strikes an appropriate balance.

RFE/RL: I wanted to shift to national security, and specifically to the tension between national security and civil liberties. This tends to go in cycles in the United States. When citizens feel threatened, as in the early part of the Cold War, they are more willing to sacrifice liberty in the interests of security and the state expands its reach. When they feel less threatened, as in the 1960s and 1970s, society becomes more protective of its liberties and the state retrenches. We saw this cycle begin again with the September 11, 2001 attacks. But there is also a sense that 9/11 may have changed the national DNA and the current retrenchment on civil liberties might be more permanent. How do you see this?

I think you've been discerning. You see this in the World War II Supreme Court decisions. Shortly after Pearl Harbor, the Supreme Court essentially let the president do anything, including interning the Japanese, as a matter of military necessity. As you got further away from Pearl Harbor and the war was progressing, the Supreme Court became more protective of civil liberties. I think you see the same thing in the courts regarding 9/11. The further away we've got the more protective the Supreme Court has become. But I do think that 9/11 really did something unprecedented and fundamental to the United States. For more than 200 years we were protected by two oceans. But since Pearl Harbor, which was Hawaii, we had never been attacked or felt attacked on American soil. And I think that that has made a big difference. I think many Americans are willing to give up a degree of liberty that would have not been acceptable before 9/11. And I don't know whether or when we will get back to our dedication to giving priority to protecting civil liberties that was manifest before 9/11.

RFE/RL: So a lot depends on whether there is another big attack?

I think there are two things -- we have matters like the [Boston] marathon bombing 12 years after 9/11 that are reminders that there are still threats, and I also think one of the great dangers is that younger generations get accustomed to a lesser degree of privacy and therefore don't expect it. To a certain extent I think we've accepted intrusions on our privacy that have not been necessary for national security purposes, for example -- although I don't think this is the case now -- for a long time, to go on to an airplane you went through a screening device that actually showed you naked. They have screening devices that I think they use now that show whether you have a gun or an explosive but won't expose you most personal areas. It wasn't necessary but people were routinely doing it. I think, on one hand you are right -- the further away we get from 9/11, if there isn't a major terrorist event, people will relax, although I don't know if [the U.S.] President and Congress will relax because they read those frightening security reports every day. But I am concerned that particularly younger generations will just accept that less liberty and privacy than our contemporaries expected is appropriate.

RFE/RL: You were in the U.S. Justice Department in the aftermath of the Watergate scandal and therefore quite familiar with the case of Daniel Ellsberg, the U.S. military analyst who leaked the Pentagon Papers, the classified documents on the Vietnam War, to "The New York Times" and "The Washington Post" in 1971. And you are, of course, familiar with the case of Edward Snowden. How would you compare these two cases in terms of law and in terms of impact?

I actually think there are more similarities between [Daniel] Ellsberg and [Edward] Snowden than there are for example between Ellsberg and [Julian] Assange and [Bradley, now Chelsea] Manning in WikiLeaks because Ellsberg had the Pentagon Papers, they related to Vietnam. It was toward the end of the [Vietnam] war. He turned them over to "The Washington Post" and particularly "The New York Times," which he knew would look at them and not just publish every word but do what they did -- decide what was in the public interest, what should the public know, but also not publish things that really could damage national security or the safety of individuals. I would say Snowden, as compared to Assange, did the same thing. What he did is he gave it to "The Guardian" and certain other organized media and they've exercised editorial judgment to strike a balance. He could have done what Assange did, which is put it all on the Internet.

RFE/RL: You do a lot of work with judges in the former Soviet Union and in the former communist countries of Eastern Europe. In many of these countries, the judiciary is, de facto, an appendage of the executive branch. How can judicial independence be established in such an atmosphere?

That's why I am in Prague and able to speak to you. I am here for a very promising program of the CEELI Institute. [Central European And Eurasian Law Institute] They have developed, they have begun to form and permit to be forged a network of young judges from more than a dozen Central European, Eastern European, and Balkan countries who are dedicated to establishing impartial judiciaries in their countries. Independence is instrumental to impartiality, but for example in Slovakia they have an independent judiciary, it's just not an honest judiciary because the president of the court is not honest. But you are right, there are two forms of corruption that characterize the judiciary -- in these countries traditionally one is they take direction from the party in the state and two, the judges often take bribes. But I've really been impressed by these young judges who may be a minority at the moment, who are in their country working very hard to establish impartial, independent judiciaries. They are now learning from each other's experiences as part of this network and focus on a very important program. You say, how do you improve? To me the one thing that would help the most is the recruitment of new judges. In many of these countries it's nepotism, it's favoritism -- it's not merit. And the best young lawyers and law students would not try to be judges because there is a stigma attached to being a judge. But these people are working on issues of recruitment, of promotion, of codes of ethics, of promoting transparency, of disciplining the kind of corruption you described. But I think it's important to recognize that there are some honest, able, industrious judges and they are making some progress at different paces in this dozen or so countries.

RFE/RL: It seems to me, the operative phrase is "young judges." Is generational turnover the key in these countries?

Well, I think many of the people who were judges in the communist era continue to be judges. And it's very difficult -- almost impossible -- to change habits. That's why as I travel around the world -- I've come to Prague from Turkey and the last year I've been to Russia, Romania, Slovakia, the Czech Republic -- I always insist on talking to students. I like to talk to this network of younger judges because I do think you can form attitudes and habits, you can support people who are trying to emulate the ideal of the impartial, independent judge in the United States. It's very gratifying to be engaged in that effort because democracy, we say in the United States, is a government of laws and not men but it takes particularly dedicated women and men as lawyers, and judges, and citizens to make that a reality. I've met about 30 of them in the last couple of days and it gives me hope that they will at least be contending forces and over time the good guys will grow in number and that the judiciaries in all of these countries and the democracies in all of these countries will be improved.