Speech, Privacy, and Government Infiltration

Yesterday, I mentioned a recent report from the Justice Department’s Office of the Inspector General on some potentially improper instances of FBI monitoring of domestic anti-war groups. It occurs to me that it also provides a useful data point that’s relevant to last week’s post about the pitfalls of thinking about the proper limits of government information gathering exclusively in terms of “privacy.”

As the report details, an agent in the FBI’s Pittsburgh office sent a confidential source to report on organizing meetings for anti-war marches held by the anarchist Pittsburgh Organizing Group (POG). The agent admitted to OIG that his motive was a general desire to cultivate an informant rather than any particular factually grounded investigative purpose. Unsurprisingly, reports generated by the source contained “no information remotely relevant to actual or potential criminal activity,” and at least one report was “limited to identifying information about the participants in a political discussion together with characterizations of the contents of the speech of the participants.” The agent dutifully recorded that at one such gathering “Meeting and discussion was primarily anti anything supported by the main stream [sic] American.”

Now, in fact, the OIG suggests that the retention in FBI records of personally identifiable information about citizens’ political speech, unrelated to any legitimate investigation into suspected violations of federal law, may well have violated the Privacy Act. But if we wanted to pick semantic nits, we could surely make the argument that this is not really an invasion of “privacy” as traditionally conceived—and certainly not as conceived by our courts. The gatherings don’t appear to have been very large—the source was able to get the names and ages of all present—but they were, in principle, announced on the Web and open to the public.

Fortunately, the top lawyer at the Pittsburgh office appears to have been duly appalled when he discovered what had been done, and made sure the agents in the office got a refresher training on the proper and improper uses of informants. But as a thought experiment, suppose this sort of thing were routine. Suppose that any “public” political meeting, at least for political views regarded as out of the mainstream, stood a good chance of being attended by a clandestine government informant, who would record the names of the participants and what each of them said, to be filed away in a database indefinitely.  Would you think twice before attending? If so, it suggests that the limits on state surveillance of the population appropriate to a free and democratic society are not exhausted by those aimed at protecting “privacy” in the familiar sense.