Barton Gellman on the Washington Post's NSA Story

Over at the Washington Post, reporter Barton Gellman has a lengthy article on his (and his coauthors') reporting methods and ethical choices in their recent story on the large cache of electronic conversations that Edward Snowden gave them. The article is excellent---interesting and illuminating in a number of respects---and I recommend reading it in its entirety. For present purposes, however, I want to flag and reflect briefly only on Gellman's response to a post of mine about the ethics of Snowden's actions in giving him this material. It's a short section of the article. It reads in full:

In framing our story, we faced a paradox: How do we report on harms to privacy without compounding them? Some readers were disturbed by our quotation of private correspondence — and even of our decision to read it. Ben Wittes, writing on Lawfare, describes Snowden’s transfer of NSA content to me this way:

The contractor gives a cache of 160,000 such conversations — some of them very lengthy — to a third party. He does so apparently indiscriminately, and he leaves to nothing more than trust that the recipient will use the material responsibly. The third party then proceeds to publish passages . . . from the correspondence of a private individual, written to a boyfriend about their apparent affair — a private individual who has been accused of no wrongdoing. . . . If the contractor in question were anyone other than Edward Snowden, we would immediately recognize this disclosure for what it is: a massive civil liberties violation of precisely the type we put intelligence under the rule of law to try to prevent.

We recognize a dilemma here, but we do not think the answer is obvious. There was an important story to tell about surveillance and privacy. We did not believe we could tell it with broad allusions to unspecified personal content in the NSA’s intercepted files. We also believed we had to give weight to the privacy and national security implications of quoting them. Wittes writes, in reference to the woman we quoted, that although we “delicately kept her name out of the story, her whole social world will know who she is.” That is speculation. The woman tells me otherwise. We decided from the start that we would not quote from any conversation without the speaker’s consent. The Australian woman gave us that, provided that we left out her name and other details she specified. Afterward, she wrote to praise a “fantastic article” and said her employer and friends, other than those who knew the story already, had not connected it to her. “Thanks very much,” she wrote. “I appreciate your efforts for anonymity.” The one example aside, Wittes makes a broader attack on “Snowden — in the unfettered exercise of his unlimited discretion — choosing Gellman as the sole check and balance on the disclosure of personal data — Gellman who, unlike NSA, has no statutory standard to live up to and no oversight from Congress or the courts.” It is true that, with a few exceptions such as libel, the government does not lay down standards of publication or compel me to follow them. That is a fairly basic feature of our constitutional system. The way I make use of that freedom, and the choices The Post made for this story, are fair game for anyone to judge. We are comfortable with our choices and the way we made them.

Gellman makes two points here, and they are of very different merit, to my mind anyway. On his first point---that the Australian woman was not outed by his story to her social world, my speculation notwithstanding---I have no reason to doubt Gellman and am pleased to be corrected. I am also pleased that the woman in question liked the article, which I also praised in general for discretion with respect to highly sensitive material. "[T]he Post here appears to have done a pretty thoughtful job of deciding what information to report and what information to withhold," I wrote. "By and large, the Post deserves credit for taking the sensitivity of this information seriously." That said, I don't think Gellman's point here bears much on the ethics, legality, or propriety of what Snowden did in giving this material to him. Snowden, after all, did not know that Gellman would make responsible judgments about what information to loose upon the public. Nor did he know that the specific woman in question would be gratified, rather than mortified, by the decisions his chosen journalists would later make. How much to expose her to journalistic scrutiny simply wasn't under the law his decision to make. This brings me to Gellman's second point, which is actually non-responsive to the argument I was making. Yes, it is a feature of our constitutional system that the government can't generally regulate Gellman's publication decisions. But I was in no way suggesting that it should. I was suggesting, rather, that the absence of such legal standards is one reason it is so unethical to steal large volumes of the most personal data the government can legally collect and dump them willy nilly in the hands of a journalist. It is emphatically not any part of our constitutional system that the government is disallowed from regulating Snowden's handling of material---both to protect national security and to protect privacy--or his legal right to give material to Gellman. I recommend Gellman's article and I commend him and his colleagues for the steps they took to protect the individuals whose material they ended up in possession of. But as you read the article, ask yourself this: Isn't the reason we have certain privacy laws precisely to prevent individuals in government from misusing this sort of material for their own political ends? And are we really going to forgive egregious violations of privacy and civil liberties just because Snowden committed them in the name of privacy and civil liberties? And why don't any of the privacy and civil liberties groups seem to mind what Snowden did here?