Is Classified NSA Material Lurking in Your Manuscript?

You may not know this but material that is published in newspapers and widely available on the Internet may still be illegal to publish in a book.  I certainly had no clue about this but was advised as much by my publisher this past year.

The incident came to mind today when it was announced that the Guardian newspaper and the Washington Post were joint winners of the Pulitzer Prize for their coverage of the classified documents leaked by Edward Snowden that documented the massive NSA surveillance program.

Those documents were the source of my legal education as my co-author and I were revising our Media/Society book.  We briefly discussed the NSA’s electronic surveillance in the book and wanted to use a now well-known slide from the NSA’s PowerPoint presentation on its Prism program (below).  The slide clearly suggested the NSA’s use of some of the most popular web sites to gather information, including e-mails, photos, videos, and social networking details.

from the Washington Post http://www.washingtonpost.com/wp-srv/special/politics/prism-collection-documents/images/prism-slide-4.jpg

Our publisher, SAGE, raised legal concerns and said it couldn’t be done.  At first, the presence of corporate logos seemed to be the issue; they were concerned about possible lawsuits for using the copyrighted material.  We understood and said we could redact the actual logos and use the rest of the slide, but that wasn’t enough.  We finally learned that the real concern was that these “classified” slides—now widely published in newspapers and across the web—were still in a legal limbo.  The legal department was concerned that as book publishers (rather than journalists) the company might be liable for printing classified material—no matter how widely available it is.

In the end, it was clear they wouldn’t publish the slide.  Since it was widely available elsewhere, this wasn’t a matter of deep principle for us but it was a “teachable moment.”  We opted to use another photo of a protestor supporting Snowden and then, in the caption, added an “Authors’ note to readers” explaining that we originally planned to use the image of the Prism slide but ended up not doing so because it apparently remains classified.  We then listed the Guardian and Washington Post URL’s where the slide could be viewed.  Hopefully, astute instructors can use the material to generate awareness about how designating material as “classified” can have repercussions that extend into places we might not expect.