Covering the Cyberwars

Daniel Ellsberg’s release of the top-secret Pentagon Papers established the precedent that the US government cannot impose prior restraint on the publication of sensitive national security information—even when it is classified. Over the ensuing fifty years, an uneasy, informal arrangement between government officials and news organizations has evolved to manage the challenges of publishing this material. The age of persistent cyber conflict is testing this arrangement. While the US government frequently reveals cyberattacks on its institutions, corporations, and the power grid, it surrounds its own offensive cyber operations with intense secrecy. This essay argues that if the United States is serious about creating “norms of behavior” in cyberspace and deterring cyberattacks on American citizens, the public must be able to debate how and why the U.S. employs cyberweapons against other countries—an objective threatened by the aggressive policies of the Obama and Trump administrations aimed at criminalizing leaking.

Blackstone’s and Mansfield’s Narrow Liberties of Press and Speech, and Broad Crimes of Seditious Libel and Seditious Words

The narrow understanding of freedoms of press and speech, adopted by Sir William Blackstone and Lord Chief Justice Mansfield, defined those freedoms as no more than liberty from a government-issued license or other prior restraint, with no liberty from punishment of sentiments once printed or spoken. In doing that, the last volume of Blackstone’s Commentaries in 1769 summarized a narrow common law definition of freedoms of press and speech that did not exist in common law. Mansfield’s decisions introduced a similar definition into the common law for the first time the year after that. Besides describing a new definition as ancient, both Blackstone and Mansfield described the related framework for prosecuting sedition as being ancient and universally accepted, when in fact it was a collection of unique rules adopted and manufactured seventy years before and recently revised. Blackstone and Mansfield were not declaring ancient law but were creating new law.

The Emerging Broad British View of Freedoms of Press and Speech, Before the Colonial Crisis

For a time after licensing expired in England in 1695, some people identified freedom of press narrowly as freedom from licensing, but a broader concept was spreading. For example, Young Gentleman in 1712 said that one side sought restraint “either by reviving the [Licensing] Act . . . or by some other law” (like taxes), while the other side advocated “unrestrain’d freedom of the press” based on “the liberty and property of the subject, which all Britains are so tender of” and which “no act of Parliament . . . can infringe.” Increasingly, freedoms of press and speech were described as something more than freedom from prior restraint, such as “freedom . . . to communicate his sentiments to the public,” a right to publish, liberty of inquiry, freedom from any restraint, or security from prosecution. Cato’s Letters in 1720 stressed that if officials were trustees for the people, discussion and criticism of their trusteeship was a right.

No amount of “AI” in content moderation will solve filtering’s prior-restraint problem

Contemporary policy debates about managing the enormous volume of online content have taken a renewed focus on upload filtering, automated detection of potentially illegal content, and other “proactive measures”. Often, policymakers and tech industry players invoke artificial intelligence as the solution to complex challenges around online content, promising that AI is a scant few years away from resolving everything from hate speech to harassment to the spread of terrorist propaganda. Missing from these promises, however, is an acknowledgement that proactive identification and automated removal of user-generated content raises problems beyond issues of “accuracy” and overbreadth--problems that will not be solved with more sophisticated AI. In this commentary, I discuss how the technical realities of content filtering stack up against the protections for freedom of expression in international human rights law. As policymakers and companies around the world turn to AI for communications governance, it is crucial that we recall why legal protections for speech have included presumptions against prior censorship, and consider carefully how proactive content moderation will fundamentally re-shape the relationship between rules, people, and their speech.

Poetics of the Pillory

On the lapse of the Licensing Act in 1695, Thomas Macaulay wrote in his History of England, ‘English literature was emancipated, and emancipated for ever, from the control of the government’. It’s certainly true that the system of prior restraint enshrined in this Restoration measure was now at an end, at least for print. Yet the same cannot be said of government control, which came to operate instead by means of post-publication retribution, not pre-publication licensing, notably for the common-law offence of seditious libel. For many of the authors affected, from Defoe to Cobbett, this new regime was a greater constraint on expression than the old, not least for its alarming unpredictability, and for the spectacular punishment—the pillory—that was sometimes entailed. Yet we may also see the constraint as an energizing force. Throughout the eighteenth century and into the Romantic period, writers developed and refined ingenious techniques for communicating dissident or otherwise contentious meanings while rendering the meanings deniable. As a work of both history and criticism, this book traces the rise and fall of seditious libel prosecution, and with it the theatre of the pillory, while arguing that the period’s characteristic forms of literary complexity—ambiguity, ellipsis, indirection, irony—may be traced to the persistence of censorship in the post-licensing world. The argument proceeds through case studies of major poets and prose writers including Dryden, Defoe, Pope, Fielding, Johnson, and Southey, and also calls attention to numerous little-known satires and libels across the extended period.