Edward Snowden Leaks of NSA Documents

Background

Edward Snowden is a computer specialist who worked for the CIA and the National Security Agency (NSA) as a US Government contractor. After leaving his job with the NSA, he revealed thousands of classified NSA documents to journalists Glenn Greenwald, Laura Poitras, and Ewen MacAskill, and the stories were reported in The Guardian and The Washington Post. The leaked documents revealed that the NSA had been making records of almost every phone call in the United States and had been monitoring the private activities of ordinary citizens who had done nothing wrong. The NSA’s violation of privacy rights was not limited to US citizens, but rather had international reach. Snowden revealed that US intelligence agencies, with help from UK counterparts, were monitoring the communications of non-US citizens, including the use by non-US citizens of sites such as Facebook and Google.

US agencies were also spying on the mobile phone records of senior European politicians, including German Chancellor Angela Merkel. One particularly disturbing revelation of the Snowden leak was that the NSA was undermining encryption algorithms and standards, in order to ensure they would be sufficiently weakened that its supercomputers could break the encryption.

The most troubling revelation for most Americans was the mass surveillance of the private communications of ordinary citizens who had done nothing wrong. Snowden related that 18 to 22-year-old analysts were "thrust into a position of extraordinary responsibility, where they now have access to all your private records. In the course of their daily work, they stumble across something that is completely unrelated in any sort of necessary sense—for example, an intimate nude photo of someone in a sexually compromising situation. But they're extremely attractive. So what do they do? They turn around in their chair and they show a co-worker. And their co-worker says, ‘Oh, hey, that’s great. Send that to Bill down the way’, and then Bill sends it to George, George sends it to Tom, and sooner or later this person’s whole life has been seen by all of these other people.” Snowden claimed that this behavior was routine, happening "probably every two months," but was never reported—rather, it was considered to be "the fringe benefits of surveillance positions." [1]

In response to Snowden’s actions, the U.S. Department of Justice charged him with two counts of violating the Espionage Act of 1917, as well as theft of U.S. government property. On June 23, 2013, Snowden fled to Moscow, Russia, where he was granted a one-year asylum, which has since been extended to three years. In the meantime, he has been seeking asylum elsewhere, having applied in 21 countries. On the two-year anniversary of his exile, he wrote an op-ed for the New York Times where he stood by his decision, pointing out that “in a single month, the NSA’s invasive call-tracking program was declared unlawful by the courts and disowned by Congress. After a White House-appointed oversight board investigation found that this program had not stopped a single terrorist attack, even the president who once defended its propriety and criticised its disclosure has now ordered it terminated.” Snowden admitted that initially, he feared that he and the journalists had put their “privileged lives at risk for nothing.” However, the aftermath has been enormous. As Snowden put it—“This is the power of an informed public.”

Fallout

The effects from the Snowden leak are still ongoing today. One aftermath of the Snowden disclosure is the end of mass surveillance of private phone calls under the Patriot Act. The U.S. Court of Appeals for the Second Circuit held recently that the NSA’s bulk telephone metadata program, which began after the 9/11 attacks, is illegal. The court held that the NSA surveillance "exceed[ed] the scope of what Congress has authorized" under the Patriot Act. The “breadth of the sweeping surveillance” was a key issue in the court’s holding. The court did not rule on whether the surveillance violated Constitutional rights, but emphasized that "one of the most difficult issues in Fourth Amendment jurisprudence [is] the extent to which modern technology alters our traditional expectations of privacy." Three other cases are pending before federal appeals courts, hearing arguments on whether the dragnet collection of Americans’ phone calls is legal. One issue represented in the cases was discussed in a previous blog post—specifically, whether the Smith v. Maryland decision should be reconsidered in light of evolving technology. Some speculate that the courts are grappling with the issue of whether “legal standards for privacy in regards to archaic telephonic technology render[] any previous standard obsolete." [2]

The effects of the Snowden leak are not confined to the United States. Rather, the aftermath has been international—European laws and practices similar to the US surveillance techniques have been declared to be illegal and restrictions have been implemented, moving forward. The United Nations declared mass surveillance of individuals by the US and the UK to be a “systematic interference” with the right to privacy. The Council of Europe has called for new laws to protect whistle-blowers. The fallout has caused worldwide tension. President Obama cancelled a trip to Moscow, out of protest at Russian president Vladimir Putin's protection of Snowden. Brazilian president Dilma Rousseff cancelled a state visit to Washington to protest the US spying on her. Bolivian president Evo Morales's plane was forced down in Vienna amid suspicion that Snowden was being smuggled out of Russia.

In the private sector, companies like Apple have started using encryption to ensure the privacy of citizens. Many private companies feared a worldwide backlash from their consumers after their co-operation with the NSA was exposed by Snowden's documents—they claimed they were forced into co-operation by the law. Some companies, such as Lavabit, closed their companies rather than hand over encryption keys. Lavabit is now the subject of a government gag order.

For a comprehensive summary of the fallout from the Snowden leak, (including a running clock of how many terabytes of data the NSA has been collecting on you as you read the article), see The Guardian, The NSA Files. But perhaps, Snowden himself said it best:

“[T]he balance of power is beginning to shift. We are witnessing the emergence of a post-terror generation, one that rejects a worldview defined by a singular tragedy. For the first time since the attacks of Sept. 11, 2001, we see the outline of a politics that turns away from reaction and fear in favor of resilience and reason. With each court victory, with every change in the law, we demonstrate facts are more convincing than fear. As a society, we rediscover that the value of a right is not in what it hides, but in what it protects.” [3]

Should Snowden be Criminally Prosecuted or Pardoned of Any Crimes?

This issue presents a mixed bag, in my opinion. On the one hand, we need the NSA to perform domestic surveillance. In fact, just a few days ago, a magistrate judge ordered Apple to assist the government in disabling their encryption software, in order to find information surrounding the San Bernardino shootings. Terrorists infiltrate American soil, as part of their strategy. So, most people would not disagree that the government needs to be able to surveil domestic activity. However, people (myself included) may feel more comfortable with this if the government used targeted surveillance, rather than data mining algorithms to “dragnet a potentially limitless universe of communications traffic.” As the UN pointed out, “[w]ith targeted surveillance it is possible to make an objective assessment of the necessity and proportionality of the contemplated surveillance, weighing the degree of the proposed intrusion against its anticipated value to a particular investigation.” [4] Such an approach would be more palatable to privacy advocates.

As it relates to Snowden—he performed a public service by revealing this illegal activity by the NSA. However, critics of Snowden’s actions claim that he undermined national security to an extent that outweighs this public benefit. In fact, a majority of Americans (64%) hold a negative opinion of Snowden.

From a policy perspective, the government is in a difficult position. On the one hand, it cannot condone the leak of secret government information, especially information that undermines national security, by looking the other way. Towards this end, the government has charged Snowden with violation of what he calls “World War I-era espionage laws.” But on the other hand, American law has carved out protection for whistleblowers and we, as a society, have recognized the social benefit they produce.

My thoughts run contrary to the majority of Americans. I believe that the need to protect whistleblowers outweighs the need to deter informational leaks. Snowden sacrificed his “privileged life” to perform a great public service. We, as a society, had a right to know that our rights were being violated. He should be pardoned, rather than prosecuted, for his sacrifice.