Balancing Censorship with Security: Edward Snowden, Others Fight to Publish Memoirs Without Review by Government
In 2019, Edward Snowden—a former National Security Agency contractor who leaked a massive trove of classified information in 2013—published a memoir titled Permanent Record.[1] In Permanent Record, Snowden discusses his childhood and his career in intelligence, as well as the events that led to his exile in Moscow, while raising questions about privacy, speech, and the Constitution.[2] Following a ruling in December 2019 by the U.S. District Court for the Eastern District of Virginia, Snowden must now pay the federal government back the proceeds he earned from “Permanent Record.”[3] But why?
Snowden did not submit “Permanent Record” to the federal government to review before its publication.[4] Federal agencies currently employ a system of prior restraint requiring that current and former intelligence agency employees submit any communications that may include national security information for review by the government before making them public.[5] Employees of national security and intelligence organizations, as well as others who work with these agencies, including contractors and members of the armed forces, are required to sign non-disclosure agreements (“NDAs”).[6] These NDAs obligate current and former employees to safeguard protected information, report unauthorized disclosures of protected information, and submit to the prepublication review process.[7]
The prepublication review process determines whether information proposed for public release contains information classified as “protected information.”[8] The scope of communications that are required to be submitted for prepublication is immense and includes virtually all forms of public communications.[9] This includes newspaper and magazine articles, non-fiction and fiction books, internet postings, employment materials like resumes and cover letters, speeches, videos, research papers, and press releases.[10] If someone who signed an NDA does not submit these types of materials to the government for review, he or she forfeits the rights to, and any money earned from, those materials to the federal government.[11] When Snowden published his book, bypassing prepublication review, he breached his NDA with the government.[12] The federal court granted summary judgment in favor of the government, barring Snowden from challenging the validity or constitutionality of the NDA or the prepublication review process.[13]
A pending complaint filed last year in a U.S. District Court in Maryland by the ACLU on behalf of five former intelligence employees directly challenges the constitutionality of prepublication review on First Amendment grounds.[14] In the complaint, five authors who are former members of the intelligence community and submitted their work for prepublication review allege that prepublication review “suppresses a broad swath of constitutionally protected speech”[15] and “deni[es] [public] access to speech by former government employees that has singular potential to inform public debate about government policy.”[16] The federal government returned their manuscripts requesting redactions for information that went beyond safeguarding classified information learned by the authors during their time working in intelligence. The federal government redacted information that was already published in newspapers[17], available on Wikipedia[18], published by the government itself in unclassified reports[19], or referred to events that occurred after author had left the intelligence organization.[20]
While protecting classified government information is an important and necessary function of the federal government, the prepublication review process, as it exists now, is overbroad and arbitrary. Such an opaque system has resulted in a process that censors rather than safeguards Americans. It remains to be seen whether the federal court in Maryland will allow the ACLU’s lawsuit to proceed, but the lawsuit has brought to light a system previously kept in the dark.
Footnotes
