Will the Washington Post Destroy "Incidental" NSA Intercepts When It's Done With Them?

| Tue Jul. 8, 2014 12:27 PM EDT

A couple of days ago the Washington Post published an article based on a cache of thousands of surveillance intercepts that it got from Edward Snowden. That produced the suggestion—not widespread, I think, but still out there—that the Post was now violating privacy just like the NSA has been. Glenn Greenwald thought this was pretty dumb, but Julian Sanchez wasn't so sure:

Doesn't seem TOTALLY frivolous. I hope you & WaPo are destroying copies of intimate communications once reporting's done.

This is actually....a good point. The charge against the NSA isn't just that it ends up surveilling thousands of innocent people who are merely innocent bystanders in court-approved investigations. Even critics concede that this is inevitable to some extent. The problem is that once the NSA has collected all these "incidental" intercepts, they keep them forever in their databases and make them available to other law enforcement agencies for whatever use they want to make of them. At the very least, privacy advocates would like these incidental collections to be destroyed after they've served their immediate purpose.

So will the Post do this? Once they've finished their immediate reporting on this, will they destroy these intercepts? Or will they keep them around for the same reason the NSA does: because, hey, they have them, and you never know if they might come in handy some day?

There's always been a tension inherent in Edward Snowden's exposure of the NSA's surveillance programs: Who gets to decide? You may think, as I do, that the government has repeatedly shown itself to be an unreliable judge of how much the public should know about its mass surveillance programs. But who should it be instead? Snowden? Glenn Greenwald? The Washington Post? Who elected them to make these decisions? Why should we trust their judgment?

It's not a question with a satisfying answer. Sometimes you just have to muddle along and, in this case, hope that the whistleblowers end up producing a net benefit to the public discourse. But this time we don't have to muddle. This is a very specific question, and we should all be interested in the answer. Do Greenwald and the Post plan to destroy these private communications once they're done with them? Or will they hold on to them forever, just like the NSA?

POSTSCRIPT: Yes, there's a difference here. On the one hand, we have the government, with its vast law-enforcement powers, holding onto massive and growing amounts of incidental surveillance. On the other we have a private actor with a small sample of this surveillance. We should legitimately be more concerned with possible abuses of power by the government, both generally, and in this case, very specifically. But that's a starting point, not the end of the conversation. Sanchez is still asking a good question.

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