Before disclosing details of classified National Security Agency (NSA) surveillance programs to the press, Edward Snowden worked as a former technical contractor and Central Intelligence Agency (CIA) employee who worked for Booz Allen Hamilton, a contractor for the NSA. But in less than a week, his actions would put the United States’ national security establishment on the defensive. The disclosures will be remembered as some of the most significant leaks in history.
On June 5, 2013, The Guardian released a “top secret” order of the secret Foreign Intelligence Surveillance Court (FISC) that ordered Verizon Wireless to provide the NSA, “on an ongoing daily basis,” metadata for all telephone calls “wholly within the United States, including local telephone calls” and calls made “between the United States and abroad.” On June 6, The Guardian and the Washington Post revealed PRISM, a clandestine electronic surveillance program that granted the U.S. intelligence community access to e-mail, web searches, and other Internet traffic in realtime. On June 9, The Guardian revealed “Boundless Informant,” a data analysis and data visualization system that provided NSA managers summaries of NSA’s data collection activities. And then on June 12, the South China Morning Post reported that Snowden said that the U.S. government “had been hacking into computers in Hong Kong and [in China] for years.”
Soon after the revelations were made, the political commentariat rushed to judgment.
Snowden’s defenders sought to brandish him a heroic whistleblower. In an article in the Huffington Post, actor John Cusack coined “The Snowden Principle,” or the act of sacrificing for the greater good out of the desire to inform the public as to that which is done in their name. Other commentators drew comparisons to Daniel Ellsberg, the famous leaker of the Pentagon Papers who is credited with helping turn public opinion against the Vietnam War. Even Ellsberg himself remarked that “there has not been in American history a more important leak than Edward Snowden’s release of NSA material,” including his own leak.
To others, however, Snowden’s actions amounted to treason. Jeffrey Toobin called Snowden “a grandiose narcissist who deserves to be in prison.” And Republican Peter King, chairman of the House Homeland Security Subcommittee, said that if Snowden “did in fact leak the NSA data as he claims, the United States government must prosecute him to the fullest extent of the law.”
Regardless of whether you support or oppose Snowden’s actions, the bottom line is that he broke the law. Even Snowden’s supporters must concede this; they would argue, in response, that he did so for good reason. Section 793(g) of Title 18 of the U.S. Code says that a person lawfully in possession of information that the government has classified as secret who turns it over to someone not lawfully entitled to possess it has committed a crime. Snowden violated this provision of the Espionage Act.
Moreover, Snowden broke the law “revealing” information that we have known about for years. This is a pretend-discovery and a non-scandal. If anything, Snowden’s actions should be an indictment of the media and political establishment for failing to seriously debate the complicated question of how to balance national security concerns with individual liberty. We may not have known about the secret court order from FISC. We may not have associated the acronym PRISM with electronic surveillance. But we have known for years that our government was collecting and analyzing telephone and e-mail communications. Consider, for example, the following excerpt from a Washington Post article published in February of 2008:
President Bush authorized a surveillance program in late 2001, allowing the NSA to monitor communications between the United States and foreign countries without court oversight when a party is believed to be linked to al-Qaeda. Administration officials have recently acknowledged that the NSA program was broader, and intelligence sources have described a vast effort to collect and analyze telephone and e-mail communications that were later scrutinized by the government for desired information. There have been fierce disagreements about the program’s legality.
That last point, regarding the program’s legality, is not insubstantial.
There is a crucial distinction between the Bush and Obama administrations’ surveillance programs. “The difference between what the Bush administration was doing in 2001, right after 9/11, and what the Obama administration is doing today is that the system is now under the cover and color of law,” whistleblower Thomas Drake wrote in The Guardian.
Although there is a lot of authoritarian overreach in American society, this changes the tenor of the complaint. Snowden did not uncover evidence that NSA misused the collected data for reasons other than the intercept of terrorist communication. Nor did Snowden reveal that Americans actually had their communications monitored without probable cause and judicial review.
Rather, Snowden’s disclosures reveal the actions of an administration committed to rooting out terrorism suspects by maintaining an essential and comprehensive investigative database while at the same time trying to prevent its obvious potential for abuse. It is unnerving that the government is maintaining a data base of all phone calls, and that they’re paying attention to the Internet. But they aren’t listening to the calls; they cannot read your emails. To do that, law enforcement requires a full-throated argument of probable cause. And, most importantly, a court order.
In fairness, having the FISA courts rulings secret is problematic. This level of secrecy is unsustainable for a democracy. But it is a marked improvement from what previously had been entirely unregulated.
What is remarkable about this story is the breadth of the government’s surveillance program, not that such a program exists. Snowden’s actions reignited an important debate about the tradeoffs between security and civil liberties, a debate that has largely consisted of a closed feedback loop between the president, intelligence agencies, Congress and the judiciary.
But in engaging in this debate, the question cannot seriously be whether law enforcement should have to pretend that data from our cell phones and the Internet do not exist, data that has been the baseline logic of an American anti-terrorism effort that is tasked with finding needles before they are planted into haystacks. Rather, the fundamental question must be whether these surveillance programs are being utilized for the legitimate public safety needs of the society, with appropriate oversight and judicial review, or whether these programs are being used in ways that abuse individual liberty and violate personal privacy.