Government Claims It Can Legally Prevent People from Telling Others What It Is Doing to ThemRandall Holcombe • Wednesday July 17, 2013 11:49 AM PST •
Among the many facts recently revealed about the NSA’s constitutionally questionable collection of personal information, one that I find especially troubling is the government’s claim that it can legally prevent people from telling others what government is doing to them.
The NSA has apparently ordered Microsoft to turn over some information to them, but has also ordered Microsoft to keep that activity secret. Microsoft has appealed to Attorney General Eric Holder to allow the company to tell the public what the federal government has forced them to do.
I am not opposed to secrecy in general. Businesses keep secrets (a well-known one is the formula for Coca Cola, which is a trade secret), and the whole NSA issue is over the right of individuals to keep their personal information private. These are cases in which individuals and businesses keep secrets because they want to.
Microsoft is different. The company did not agree to keep any secrets. What Microsoft is asking is to be allowed to reveal what the government is forcing them to do. They did not stumble upon any secret information, or seek to discover anybody else’s secrets. They were coerced by the government, and they only want to reveal what they were coerced to do.
If the government can force people to keep secret what the government has done to them, imagine how this would apply to other parts of the law. People have been justly outraged by the government’s asset forfeiture laws, but only because those whose assets have been confiscated have been able to publicize what happened to them. Imagine that your brother borrowed your car, and was arrested on a drug charge leading to your car being confiscated because it was used in a drug deal. Now imagine that the government told you it was illegal for you to reveal that your car was confiscated, just as Microsoft is being told that it is illegal for them to reveal that data they were handling was seized by the government.
Or, imagine that you are arrested on some charge, perhaps even one that ends up being dropped, and you are subject to some rough interrogation techniques. Think, for example, about the treatment Rodney King got by the LAPD. But then you are told that if you reveal the coercive activities government subjected you to, that would be a violation of the law, so you could be punished just for telling others what government did to you, much as Microsoft is now in a position where it could be punished if it reveals what government forced it to do.
A well-recognized important check on the power of government is the ability of citizens to object to the government’s actions. The First Amendment says “Congress shall make no law... abridging the freedom of speech, or of the press, or the right of people peaceably to assemble, and to petition the government for a redress of grievances.”
If government can force people to not reveal what the government is doing to them, not only is that an abridgement of the freedom of speech; without knowledge of government’s activities, people will be unable to petition against activities of which they are unaware.
Government’s accountability to its citizens is seriously eroded when the government can compel people not to reveal what the government has done to them.