No peeking

Congress and the White House continue to wrangle over a new version of the law that covers the nation’s wiretapping program. The question of the moment is whether people should be able to sue private telecom companies who cooperated with the government after 9/11 and may, in the process, have violated their customers’ privacy rights.

The bigger question, though, is just how far the people’s right to privacy goes–and how to strike a balance between that right and the needs of national security. After all, privacy is every U.S. citizen’s constitutional right, right?

Well, maybe. The U.S. Constitution never specifically says that citizens have a right to privacy. Yet it does say they have rights that aren’t specifically mentioned in the Constitution–and the Supreme Court has ruled that privacy is among them.

Never Enumerate Your Rights

How can the Constitution protect rights it never names? Well, the framers were clever fellows. They realized people might read an enumerated list–like, say, the Bill of Rights–and assume the list was supposed to be exhaustive. So, to make sure their list wasn’t read that way, they wrote a rule against doing so and added it to the list. That rule is the Constitution’s Ninth Amendment, which reads:

The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.

Some scholars read those words strictly as a prohibition that prevents the government from doing whatever it wants as long as it doesn’t violate your enumerated rights. Others argue they imply positive constitutional protection for one or more unenumerated, yet important, rights–such as the right to defend yourself, the right to move from one place to another, and the right to privacy.

Private Penumbras

Many of the Constitution’s amendments are privacy-related. The First Amendment preserves your right to practice your religion and speak your mind. The Fifth Amendment preserves your right to remain silent and your right to private property. The Fourth Amendment preserves “the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures.”

In a 1965 privacy rights case, Griswold v. Connecticut, the Supreme Court ruled that these “various guarantees create zones of privacy.” Striking down a Connecticut statute that forbade the use of contraceptives even by married couples, the Court held that “specific guarantees in the Bill of Rights have penumbras, formed by emanations from those guarantees that help give them life and substance.” (A penumbra is a partly shaded region at the edge of a shadow.)

Basically, the Court held that the spirit of one of the Constitution’s amendments, or several together, can cast shadows long enough to cover a right–such as marital privacy–that the Constitution doesn’t mention. And, under the Ninth Amendment, such rights are “retained by the people” without being enumerated. Future rulings extended Griswold’s notion of privacy beyond marriage, to strike down fornication and sodomy laws.

Penumbral Problems

Critics of Griswold argue that penumbral privacy rights are a fiction conjured from constitutional shadows. Even some privacy proponents stay away from penumbras, arguing instead that the Fourteenth Amendment guarantees privacy by promising not to “deprive any person of life, liberty, or property, without due process of law.” Privacy, they say, is essential to liberty.

In fact, the Supreme Court followed that line of reasoning in the most controversial privacy-related case of all: 1973’s Roe v. Wade. According to the majority opinion in Roe, “this right of privacy . . . founded in the Fourteenth Amendment’s concept of personal liberty . . . is broad enough to encompass a woman’s decision whether or not to terminate her pregnancy.” Clearly not everyone agrees with that argument, either.

–Steve Sampson

In front of a half-tough crowd

President Bush will deliver his final State of the Union address tonight. Well, maybe not his final one. After all, nothing in the Constitution says the State of the Union has to be an annual affair. Article II, Section 3 just says the president “shall from time to time give to the Congress information of the state of the union, and recommend to their consideration such measures as he shall judge necessary and expedient.”

Nothing in there about doing it once a year. Nothing in there about making a speech, either. In fact, presidents from Thomas Jefferson to Woodrow Wilson put their statements in writing. So, how did the State of the Union address get to be the way it is? It all started with George Washington.

Precedents for Presidents

In 1790, President Washington delivered the first State of the Union speech to a joint session of Congress convened in New York City (then the nation’s capital). At 1,085 words, Washington’s address is among the shortest ever. After hearing the president’s proposals, Congress debated, drafted, and delivered a courteous reply promising its cooperation.

So such speeches went until 1801, when Thomas Jefferson became president. Jefferson thought Washington’s approach reeked of royalty. (In fact, the idea for the State of the Union address did derive from a British tradition in which the king opened Parliament with a “Speech from the Throne.”) What’s more, Jefferson thought the Congress had better things to do than debate replies to presidential speeches.

Rather than speaking, Jefferson submitted his message in writing–saving Congress from “the bloody conflict which the making an answer would have committed them.” The next 24 presidents followed Jefferson’s lead rather than Washington’s, delivering written “information” instead of speeches.

Memorable Moments

In 1823, James Monroe used his written message to Congress to lay out the Monroe Doctrine, which declared that “the American continents, by the free and independent condition which they have assumed and maintain, are henceforth not to be considered as subjects for future colonization by any European powers.”

In the midst of the Civil War, in 1862, Abraham Lincoln used his message to propose emancipation of the slaves. “The fiery trial through which we pass,” he wrote, “will light us down in honor or dishonor to the latest generation. In giving freedom to the slave we assure freedom to the free–honorable alike in what we give and what we preserve.”

Finally, in 1913, Woodrow Wilson decided to follow Washington’s lead and not Jefferson’s. He gave a speech to both houses of Congress–reestablishing, as he put it, that “the President of the United States is a person, not a mere department of the government hailing Congress from some isolated island of jealous power.”

Media Darlings

Ten years after Wilson’s speech, Calvin Coolidge delivered the first State of the Union address to be broadcast by radio. But most agree that the master of the radio address was Franklin Roosevelt, who in 1941 famously looked forward to a future founded on four freedoms: “The first is freedom of speech and expression. . . . The second is freedom of every person to worship God in his own way. . . . The third is freedom from want. . . . The fourth is freedom from fear.”

President Harry Truman delivered the first televised State of the Union speech in 1947, but he didn’t do it in prime time. The first president to take full advantage of the power of prime-time TV was Lyndon Johnson, in 1965. The following year saw the first televised opposition response immediately following the address. So much for carefully debated replies.

What would Ben Franklin think?

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Friends, America’s Federal Communications Commission voted on Tuesday to let media companies own both a newspaper and a television or radio station in the nation’s 20 largest media markets. The controversial decision reverses a longstanding ban on such cross-media conglomeration.

Opponents of the change say the old rule helped prevent major media companies from becoming too dominant. Supporters say the new rule simply recognizes a changing media landscape, in which newspapers are struggling to find readers and more folks find the information they need online.

Either way, we say it’s a good time to look back at American media’s roots–to a time when local voices like Ben Franklin’s dominated. After all, before he messed around with lightning or charmed French royalty, old Ben was a newspaperman.

An Ink-Stained Wretch

Back then, printers did it all–interviewing recently arrived ship captains for out-of-town news, writing articles, plagiarizing stories from other newspapers, selling ads, printing the pages, and distributing the final product. In fact, most colonial newspapers sprang from small printshops that employed just the owner and his teenage apprentice.

Ben Franklin started in the printing trade as an apprentice to his older brother, James, who ran a small printshop in Boston. Working there exposed the young Franklin to different kinds of writing and gave him a chance to borrow books on the sly from booksellers’ apprentices.

In those days, printers had to be smart and strong. Composing the pages was a mental feat–type was set letter by letter, using little blocks of metal, and for the page to appear correctly when printed, every line had to be composed in reverse. (Many printers were as adept at reading backward as forward.) After the pages were made, the printer personally pulled the lever on the heavy wooden press to stamp the image–one page at a time. No wonder few colonial newspapers had a press run of more than 300.

The Life and Times of Silence Dogood

James Franklin wanted his publication, the New-England Courant, to be more than the usual collection of 6-month-old news that appeared in other colonial newspapers. So he solicited articles. In 1722, 14 letters appeared in the New-England Courant signed by “Silence Dogood.” The middle-aged widow had a lot to say about the clergy, fashion, and political matters, and people loved it–even if they didn’t know who the Widow Dogood really was.

Using a pen name was common at the time, so everyone knew “Dogood” wasn’t her real name. But no one knew that 16-year-old Ben had actually written the letters, sliding them under the printshop’s door at night.

A year after the Silence Dogood letters were published, Ben ran away from his brother’s employ. (Things got rough for James after he was thrown in jail for suggesting the local authorities were in cahoots with pirates.) Still in his teens, Ben apprenticed with a Philadelphia printer before sailing for London and working there for two years. By 1729, he was back in Philadelphia and publishing his own newspaper, the Pennsylvania Gazette.

All the News Ben Could Print

The Gazette was like most newspapers of its day–no headlines, few illustrations, and it ran only four pages. What set it apart was Franklin’s lively version of local news. He filled the columns with anecdotes like this one: “And sometime last Week, we are informed, that one Piles a Fidler, with his Wife, were overset in a Canoo near Newtown Creek. The good Man, ’tis said, prudently secur’d his Fiddle, and let his Wife go to the Bottom.” The Pennsylvania Gazette became one of the most successful newspapers of its time.

Colonial newspapers had no separate editorial pages, but they were packed with opinions. Just as he had done in his Silence Dogood days, Franklin often wrote an article in the voice of a fictional citizen. In 1735, he printed a letter purportedly written by an elderly gentleman, who encouraged his fellow Philadelphians to establish a volunteer fire department. The imaginary old man described leaping out the window of a burning house. By the end of the year, the Union Fire Company of Philadelphia had formed.

“Poor Richard” Makes Ben Wealthy

Franklin’s most successful editorial alter ego was “Poor Richard” Saunders, the pen name Franklin used for the 25 years he published Poor Richard’s Almanack. In the colonies, practically every printer published an annual almanac. These thick pamphlets, showing the phases of the moon and predicting the weather, were moneymakers because most literate households purchased one every year.

In 1732, Franklin threw together a 24-page publication with a first-person preface signed by Richard Saunders. The “author,” a destitute stargazer whose shrewish wife threatened to burn all his books and astronomy instruments if he didn’t “make some profitable use of them,” admitted the reason he wrote the almanac was to make a little money and get her off his back.

From 1732 to 1757, Poor Richard’s grew in popularity as readers found more than the usual astronomical charts and tidal tables. Tucked into this almanac were proverbs such as “Early to Bed, and early to rise, makes a Man healthy, wealthy and wise.” Franklin said he saw the almanac as a way to educate folks who might not buy any other books and so “filled all the little spaces that occurred between the Remarkable Days in the Calendar, with Proverbial Sentences, chiefly such as inculcated Industry and Frugality.”

Some years Franklin sold 10,000 copies. Combined with good investments and lucrative printing contracts, the profits from the almanac allowed him to retire from printing at the ripe old age of 42. Of course, Franklin’s “retirement” was more active than many a person’s working life. And though he was hailed as a scientist, diplomat, patriot, and philosopher, at the end of his days, Franklin was still proud of his printshop roots. When he wrote his will at the age of 82, he began: “I, Benjamin Franklin, printer, . . . “

Americana

Yesterday, while snooping around America’s Central Intelligence Agency (CIA), we noticed something important. Though the CIA gets more press, the National Security Agency (NSA) actually “employs more people and consumes more cash.” Several readers wrote in to ask if that could possibly be true. It is.

So why does the CIA get all the attention? Because that’s exactly the way the NSA likes it. For decades, the U.S. government didn’t even admit that the NSA existed. It did its work secretly, governed only by executive order. The joke for those in the know was that NSA stood for “No Such Agency.” Today, let’s snoop around this cryptic intelligence group.

Civilian vs. Military Intelligence

The NSA got its start in 1952, when President Harry Truman created it with a secret stroke of his executive pen. Congress had already created the CIA five years earlier, with the National Security Act of 1947. But the civilian CIA didn’t eliminate the various military intelligence services, nor did it focus on doing what the military services did best: intercepting and reading an enemy’s mail, overhearing its private conversations, and cracking its secret codes.

To consolidate the military’s intelligence gathering for the Cold War, the NSA put all the military’s eavesdroppers and codebreakers under one general or admiral, who reported directly to the Secretary of Defense. It’s been that way ever since. While the NSA employs tens of thousands of civilians–including more math PhDs than anyone else–it remains inside the Defense Department. It even has its own troops, in a special branch called the Central Security Service.

HUMINT vs. SIGINT

To avoid superfluous spying, the civilian CIA sticks to what spymasters call HUMINT, or human intelligence. When James Bond makes contact with a double agent inside enemy territory, or gives a bad guy the back of his hand, that’s HUMINT. The NSA’s bailiwick is SIGINT, or signals intelligence, and while it doesn’t sound nearly as glamorous, many think it’s far more powerful.

The NSA uses a worldwide web of state-of-the-art satellites, listening posts, and intercept stations to capture and record huge volumes of the world’s communications. It then runs these communications through some of the world’s most powerful computers, scanning for keywords or patterns that require an analyst’s attention. An unofficial agency motto: “In God we trust. All others we monitor.”

Domestic vs. Foreign SIGINT

Officially, the NSA performs its SIGINT sweeps only “against foreign powers or agents of foreign powers.” But that doesn’t mean the communications of U.S. citizens aren’t sucked into NSA computers. NSA officials point out that, in today’s world, there is no clear and easy distinction between domestic and foreign communications.

“The networks have collapsed into one another,” said one official, “and many of our targets are on the same network that we use. It is now just ‘the network’–the global telecommunications infrastructure.” So, when U.S. citizens do appear in NSA data, analysts withhold their names from intelligence reports. But the information remains in the files, and there are exceptions that allow for its release.

–Michael Himick

Our media system is no accident. It’s not the result of “market forces.” It’s the direct result of conscious policy that determines how the “media game” is played.

The key players that make the rules include:

• The Federal Communications Commission (FCC)
  • Regulates broadcasting, telephone, cable and satellite companies
  • Charged with ensuring those who use airwaves serve the public interest
  • Enforces regulations and laws passed by Congress
• Congress
  • Enacts media laws (mainly through the Senate Commerce and House Energy & Commerce
  • Appropriates funding for public broadcasting
  • Can overrule FCC decisions and regulations
• The Courts
  • Judge whether FCC regulations meet congressional mandates
  • Decide constitutionality of laws passed by Congress
  • Interpret First Amendment rights
• The President
  • Appoints FCC Commissioners, directors of the Corporation for Public Broadcasting, and others
  • Sets policy goals for the FCC, proposes media-related budgets
  • Can veto legislation affecting media
• State and Local Governments
  • Decide which companies are allowed to provide cable and telecom services to a community
  • Negotiate contracts with cable companies that can provide public access TV channels
  • Can create (or block) Community Internet projects providing high-speed access through a public entity