DOJ Decides To Help Publicize Snowden's Memoir By Suing Him For Failing To Run His Book By The CIA And NSA First

Failures

from the thanks-for-the-publicity dept

As you’ve probably heard, Ed Snowden just came out with his memoir, entitled Permanent Record. I haven’t yet had a chance to read it, but it looks fascinating. Snowden obviously can’t do the usual book tour for this kind of thing, but he has been doing a fresh round of very interesting interviews about his current situation — including saying that he’d be willing to come home to the US and stand trial if only the US actually allowed a public interest defense for Espionage Act claims. As we’ve pointed out for years, one of the (many) problems with the Espionage Act is that it literally does not allow a defendant to explain why they leaked certain information, and assumes that it is equally nefarious to sell secrets to foreign enemies as it is to blow the whistle by informing the press of unconstitutional surveillance.

Still, the DOJ decided to help boost sales of Snowden’s book by suing him for all of the proceeds, over violation of the contract he held with both the CIA and the NSA. The lawsuit is fairly straightforward. Anyone who works in the intelligence community signs a lifetime contract that forbids publishing any manuscript or speech related to their work, without first getting “pre-publication” review.

The government takes this very seriously (in fact, too seriously). Indeed, just recently there was another controversy about pre-publication review regarding a memoir and TV show by former CIA officer Amaryllis Fox. And, for reasons like these, it seems that — purely on a legal basis — Snowden and his publisher have a high likelihood of losing the lawsuit (in part because the law is against him here, and in part because he’s unlikely to be in a position to contest it from Russia — a point we’ll discuss more below).

That said, pre-publication review is a hugely sketchy process. Earlier this year, a bunch of former intelligence officials actually sued the government, arguing that the requirement is unconstitutional. That case is still making its way through the courts, with the government pushing for it to be dismissed. However, there are other recent stories about what a bullshit process pre-publication review tends to be. It involves multiple different contracts with unclear definitions and unclear requirements. Recent revelations have also shown that the feds often use the process to purposefully delay books that will reflect poorly on the government, while speeding through ones that support the government’s position, or are coming from high-profile former officials.

The ACLU, which is defending Snowden (and also involved in the other pre-publication lawsuit mentioned above) quickly put out a statement claiming that the book doesn’t reveal any new secrets and didn’t need to go through review:

“This book contains no government secrets that have not been previously published by respected news organizations. Had Mr. Snowden believed that the government would review his book in good faith, he would have submitted it for review. But the government continues to insist that facts that are known and discussed throughout the world are still somehow classified.

?Mr. Snowden wrote this book to continue a global conversation about mass surveillance and free societies that his actions helped inspire. He hopes that today?s lawsuit by the United States government will bring the book to the attention of more readers throughout the world.?

Snowden, for his part, seems to have had a bit of fun about the whole situation on Twitter, pointing out how it’s helping to attract more attention to the book:

Oh, and also this:

Though, the framing of this as being about the government “not wanting” people to read the book is not entirely fair. They are not suing to stop the publication, which would be a much tougher task. They’re suing for the money — and as much as I disagree with the government on this, given the current state of the law, it’s totally understandable why it feels the need to. Without this lawsuit, lots of others who are going through, or intend to go through, pre-publication review will point to the Snowden situation and say “but what about that guy?”

Anyway, as noted, the government likely does have a strong case, even as bullshit as the pre-publication rules are. And, so, perhaps this means that the Treasury will get a bit of money that should end up with Snowden or his publisher. But, if the goal (as Snowden has insisted) was merely to continue the conversation and get his story out there, well, the DOJ just ended up promoting the book quite a bit. Similar situations in history have, not surprisingly, driven up demand for books:

But, if the DOJ is collecting the revenue on the other end, perhaps it doesn’t care?

There is one other element here that seems worth mentioning. Up at the top, we pointed out that Snowden says he’d come back to face trial if he was allowed to present a public interest defense for his whistleblowing. The fact that the government still refuses to allow this also makes it nearly impossible for Snowden to even fight this lawsuit, because the government will quickly argue that he’s a “fugitive” and thus not able to be represented in court (as it did with Kim Dotcom). That seems to highlight the wider fallout of the over-aggressive nature of the Espionage Act, and the inability to use a public interest defense. It makes it that much more difficult for someone like Snowden to defend his own 1st Amendment rights. And that seems unfortunate.

Either way, while I can understand why the DOJ is doing this, and recognize that it’s likely to win, that doesn’t mean that it’s the right move or a good thing overall.

Filed Under: cia, doj, ed snowden, nsa, permanent record, pre-publication review