THE SNOWDEN DISCONNECT:

WHEN THE ENDS JUSTIFY THE MEANS

John Robinson Jr.*

* * *

Abstract People react to Edward Snowden and his national security disclosures in radically different ways. Security hawks want his head and call him a traitor; privacy advocates think him a whistleblower and a national hero. This essay examines those positions and finds that there is a fundamental disconnect between them, which influences and prohibits an important national conversation concerning the scope of the NSA’s work, the laws under which it operates, and privacy rights of United States citizens. This essay concludes that the privacy advocates have the stronger interests, and that it is wildly inconsistent for the government to simultaneously seek Snowden’s prosecution at the same time it engages in substantive national-security legal reforms.

TABLE OF CONTENTS

INTRODUCTION ........................................................................................................ 2 I. BACKGROUND ....................................................................................................... 3

A. ABOUT THE NSA AND THE U.S. INTELLIGENCE COMMUNITY ................................ 3 B. SNOWDEN AND THE DOCUMENT CACHE: REVELATIONS AND LIES ........................ 5

1. The First Revelation: NSA’s Mass Collection of Cell Phone Metadata ......... 7 2. Wiretapping the Internet: PRISM ................................................................... 9 3. Devouring an Entire Country’s Voice Communications: MYSTIC ............. 12 4. Other Revelations ......................................................................................... 14

II. THE SNOWDEN FILES: HARBINGER OF CHANGE ................................... 14 III. ANALYSIS ........................................................................................................... 16

A. TWO VIEWS, ONE SET OF FILES ........................................................................... 16 B. THE DISCONNECTS, RECONNECTED ..................................................................... 18

CONCLUSION ........................................................................................................... 21

* Copyright 2014 by John Robinson Jr. This essay was prepared for Professor Dryer’s Information Privacy Law class at the University of Utah College of Law, Spring 2014. The blog associated with the course is available at http://rdryerprivacylaw.blogspot.com/.

The Snowden Disconnect

INTRODUCTION

By now, it’s old news. In June of 2013, a private contractor working on

National Security Agency projects left the United States with a cache of

secret government documents. His name is Edward Snowden, now a

household name in the U.S. and around the world. As I have written before,

some label him a traitor; others a hero. The documents he absconded with

have been referred to diametrically as either a treasure trove of information

or a major threat to U.S. national security.

Although news organizations, primarily The Guardian and the

Washington Post, have only released a small fraction of Snowden’s total

document cache, many people consider this one of the most significant

leaks in U.S. history. For instance, Daniel Ellsberg thinks that the Snowden

disclosures are more significant than even his own release of the Pentagon

Papers in 1971.1 The Pentagon Papers revealed the true history of the U.S.’s

political and military history in Vietnam that had gone unreported in the

media and explicitly illustrated that the Johnson Administration had

systematically lied to the public and to Congress.2 Therefore, any

comparison of the Snowden files to the Pentagon Papers underscores

exactly how ground-breaking Snowden’s revelations are.

The Snowden disclosures, with their results and consequences, are

fascinating and important regardless of whether his actions were heroic or

treacherous. In fact, the arc of governmental response seems to indicate that

he is both a traitor and a hero—the government persecutes and denounces

his actions on the one hand, while making substantive change to

1 Ellsberg: No Leaks More Significant Than Snowden's, ASSOCIATEDPRESS (Jun. 11, 2013 11:55 AM), http://bigstory.ap.org/article/ellsberg-no-leaks-more-significant-snowdens.

2 R. W. Apple Jr., 25 Years Later; Lessons From the Pentagon Papers, N.Y. TIMES (June 23, 1996), http://www.nytimes.com/1996/06/23/weekinreview/25-years-later-lessons-from-the-pentagon-papers.html?ref=pentagonpapers; Pentagon Papers, WIKIPEDIA, http://en.wikipedia.org/wiki/Pentagon_Papers (last visited March 20, 2014).

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surveillance law on the other. This essay explores the disconnect between

those two positions. How can Snowden be both things simultaneously? If he

is a traitor, that indicates that there was nothing wrong with the

government’s surveillance programs. But if changes to those programs are

necessary, than how can Snowden’s actions make him a traitor?

This essay engages those questions in three parts. Part I contains

background material, including the Snowden revelations themselves and the

NSA’s surveillance apparatus. Part II addresses President Obama’s

proposed changes to government surveillance programs. Part III then

analyzes the disconnect illustrated above and concludes that the continued

vitality of U.S. democracy requires that, at least in this case, the ends have

justified the means.

I. BACKGROUND

This part briefly explains the nature of the NSA, and its position within

the broader United States intelligence community, in subpart A. Subpart B

then examines three examples of revelations stemming from the Snowden

files. These examples are illustrative and help define some of the contours

of the revelations, but are not intended to be a thorough analysis—there are

many revelations not covered here as explained in part I.B.4, infra.

A. About the NSA and the U.S. Intelligence Community

Founded in 1952, the National Security Agency (NSA) is the United

States’s signals intelligence agency.3 Signals Intelligence (SIGINT) is

intelligence derived from electronic signals, including communications

systems, radars, weapons systems, and so on. As the name and definition

suggest, this is an incredibly broad term. To keep pace with that broad

mission, the NSA has become the one of the largest arms of the U.S.

3 See Exec. Ord. 12,333 § 1.12(b), 46 Fed. Reg. 59,941 (Dec. 4, 1981); Mission, NSA.GOV, http://www.nsa.gov/about/mission/index.shtml (last visited March 21, 2014).

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intelligence apparatus, which includes sixteen agencies (the Intelligence

Community) in total.4

General Keith Alexander heads the NSA and reports directly to the

Director of National Intelligence, James Clapper. Oversight of the NSA,

such that it is, comes from the congressional intelligence committees in the

House and Senate, as well as the statutorily-created5 Foreign Intelligence

Surveillance Court (FISC), which sits in private.

Although the size and spending of the various spy agencies is classified,

the Washington Post reported on the secret “black budget” of the

intelligence community.6 The report detailed some of the inner workings of

the NSA and the Central Intelligence Agency (CIA), including that the

CIA’s budget is actually around 36% bigger than the NSA’s.7 All together,

the non-Defense Department Intelligence Community employs almost

110,000 people in both civilian and military roles. Of those, almost 22,000

are full-time contractors that support core functions of the intelligence

agencies.8 Edward Snowden was among these non-government employees.

The NSA itself employs somewhat fewer people than the CIA,

presumably because its mission does not include human-based operations.

But the NSA’s headquarters is a massive complex (it even has its own exit

4 Intelligence Community, DNI.GOV, http://www.dni.gov/index.php/intelligence-community/members-of-the-ic (describing the members of the U.S. Intelligence Community that fall under the Office of the Director of National Intelligence) (last visited March 21, 2014).

5 Foreign Intelligence Surveillance Act of 1978, Pub. L. 95–511, 50 U.S.C. ch. 36. 6 Barton Gellman & Greg Miller, U.S. Spy Network’s Successes, Failures And

Objectives Detailed In ‘Black Budget’ Summary, WASH. POST (Aug. 29, 2013), http://www.washingtonpost.com/world/national-security/black-budget-summary-details-us-spy-networks-successes-failures-and-objectives/2013/08/29/7e57bb78-10ab-11e3-8cdd-bcdc09410972_story.html.

7 See id. (listing the CIA budget as being “nearly 50 percent” above the NSA’s—but the Post’s math was over-simplified). This point is interesting because many commentators had previously thought that the NSA was far and away the biggest U.S. spy agency. Id.

8 Wilson Andrews & Todd Lindeman, The Black Budget, WASH. POST (Aug. 29, 2013), http://www.washingtonpost.com/wp-srv/special/national/black-budget/.

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from Interstate 295) nonetheless. Indeed, the NSA is the largest electric

power consumer in Maryland—the headquarters alone was set to draw well

over eighty megawatts as early as 2008.9 That’s enough to power around

8,000 homes based on the national average for electrical consumption.

Running computers takes a lot of power and keeping them cool requires

a lot of water. In fact, those two requirements have run head-on into the

NSA’s need for enormous data storage at the agency’s new facility in

Bluffdale, Utah. There, the NSA fast-tracked the new facility to keep up

with its expanding needs, but has run into a number of electrical problems

along the way. When it finally begins operating, the datacenter will require

around sixty-five megawatts of electricity per year (at a cost of around $18

million), which necessitated that NSA construct a separate substation for the

facility.10 The center also uses quite a bit of water to keep everything cool,

but that information is deemed a national secret because one could use the

water use to extrapolate the massive computer power inside the center.11

This essay details some of the NSA’s uses for all that computing

horsepower in the following section.

B. Snowden and the Document Cache: Revelations and Lies

During the lead-up to the leaking his purloined secret documents,

Edward Snowden worked for NSA-contractor Booz Allen Hamilton, one of

the nation’s largest private employers of civilians with security clearances.12

9 Siobhan Gorman, NSA Electricity Crisis Gets Senate Scrutiny, BALTIMORE SUN (Jan. 26, 2007), http://articles.baltimoresun.com/2007-01-26/news/0701260231_1_electricity-rockefeller-senate-intelligence-committee.

10 Steven Oberbeck, NSA Bluffdale Center Won't Gobble up Utah's Power Supply, SALT LAKE TRIBUNE (June 30, 2013), http://www.sltrib.com/sltrib/news/56493868-78/power-center-electricity-utah.html.csp.

11 Robert McMillan, Why Does the NSA Want to Keep Its Water Usage a Secret?, WIRED (March 19, 2014), http://www.wired.com/2014/03/nsa-water/. Some are calling for disclosure of those water records, and others are calling for Utah to cut off the water supply, which would effectively stop the center from going into operation. Id.

12 Who Holds Security Clearances?, WASH. POST (June 10, 2013),

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While there, he was able to collect and store the cache of documents now

known as the Snowden files (also known as the NSA files, depending on the

news outlet). In May of 2013, he loaded up the cache and boarded a flight

for Hong Kong, seeking to travel to Latin America via countries without

extradition treaties with the U.S. After an extended stay in Hong Kong due

to the State Department’s suspension of his passport, he managed to make

his way to Russia. He is currently residing there under a one-year grant of

asylum, which is renewable.13

Meanwhile, the U.S. has filed criminal charges against Snowden.

Therefore, his prosecution, should he return to the States, is a real

possibility. In its criminal complaint, the U.S. makes three charges against

Snowden: (1) Theft of Government Property; (2) Unauthorized

Communication of Defense Information; and (3) Willful Communication of

Classified Information. However, charges 2 and 3 arise out of the Espionage

Act, which is so broadly worded as to raise First Amendment issues.14

From the Snowden files, the public now knows that much has changed

since the 1970s when the NSA only directed its activities outside of the U.S.

border. Senator Frank Church’s warning, issued while he and the Church

Committee investigated U.S. intelligence agencies in the wake of Watergate

turned out to be very prescient: “The NSA's capability at any time could be

turned around on the American people, and no American would have any

privacy left.”15 That, apparently, has come to pass. Several of the major

revelations sourced from the Snowden files follow.

http://www.washingtonpost.com/world/who-holds-security-clearances/2013/06/10/983744e4-d232-11e2-a73e-826d299ff459_graphic.html

13 See Elise Labott & Mariano Castillo, Edward Snowden Won't Be Pressured To End Asylum, Russia Says, CNN (Jan. 24, 2014), http://www.cnn.com/2014/01/24/world/europe/russia-snowden/.

14 Christina Wells, Edward Snowden, the Espionage Act and First Amendment Concerns, JURIST (July 29, 2014), http://jurist.org/forum/2013/07/christina-wells-snowden-espionage.php.

15 Id.

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The Snowden Disconnect

1. The First Revelation: NSA’s Mass Collection of Cell Phone Metadata

The first breaking story derived from the Snowden files concerned a

court order from the Federal Intelligence Surveillance Court (FISC) to the

telecommunications giant Verizon. The order required Verizon to turn vast

amounts of cellular phone metadata over to the NSA, and required Verizon

to provide that information on an ongoing basis.16 Metadata is data about

data, and, in this context, typically includes information such as time and

duration of a call, the number dialed, and the geolocation of caller.

Although a phone call’s metadata does not include the contents of the

communication, somewhat akin to the difference between an envelope and

the letter contained inside, the information on the envelope itself (i.e., the

metadata) can be very revealing. That is particularly true of aggregated

metadata, at issue here; a tool provided by MIT provides easy visualization

exactly how much information can be extracted solely from metadata.17

The U.S. government maintains that collecting metadata is not invasive

and also that it is not protected under the third party doctrine from Smith v.

Maryland.18 Also, claims the government, mass collection of metadata is

necessary because the government does not always know beforehand which

communications involve foreign terrorists. That is, “identify[ing] potential

terrorist communications ... requires collecting and storing a large volume

and high percentage of information about unrelated communications.”19

16 Glenn Greenwald, NSA Collecting Phone Records of Millions of Verizon Customers Daily, THE GUARDIAN (June 5, 2013), http://www.theguardian.com/world/2013/jun/06/nsa-phone-records-verizon-court-order.

17 Although the MIT Immersion tool analyzes email metadata, the same sort of analysis can be completed using telephony metadata. Indeed, metadata from Verizon includes geographic information as well, making it even more invasive.

18 442 U.S. 735 (1979) (holding that installation of pen register at a telephone company did not violate the Fourth Amendment because of the third party doctrine).

19 Timothy B. Lee, Here’s How The Government Justifies Sucking Up Your Phone Records, WASH. POST (July 22, 2013), http://www.washingtonpost.com/blogs/wonkblog/wp/2013/07/22/heres-how-the-government-justifies-sucking-up-your-phone-records/.

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Therefore, the argument goes, the government must collect everything so

that they can find what they are looking for after the fact. According to the

NSA, collecting Americans’ metadata in this way is legal because there are

“reasonable grounds to believe” that such collection is relevant to

international terrorism investigations.20 To find the needle, you must collect

the haystack around it.

However, privacy advocates are not so sure about either prong of the

government’s argument. They claim that the third party doctrine is tenuous

at best when applied to massive surveillance projects, and that metadata can

be very revealing even when the government does not collect the underlying

communications themselves.

A recent Stanford University study used crowdsourced data volunteered

from several hundred participants, collected over several months, to test the

relative sensitivity of metadata.21 The researchers originally predicted that

such a small dataset—few people and short time—would not reveal

particularized facts. However, they concluded that, “We were wrong. Phone

metadata is unambiguously sensitive, even over a small sample and short

time window.”22 For instance, the researchers identified such things as

participants’ religion with 73% accuracy.23 Additionally, metadata showed

that one study participant almost certainly had Multiple Sclerosis, another

definitely had cardiac arrhythmia, and a third owned an AR-15

semiautomatic rifle.24

20 Id. 21 Jonathan Mayer & Patrick Mutchler, MetaPhone: The Sensitivity of Telephone

Metadata, WEB POLICY (Mar. 12, 2014), http://webpolicy.org/2014/03/12/metaphone-the-sensitivity-of-telephone-metadata/.

22 Clifton B. Parker, Stanford Students Show That Phone Record Surveillance Can Yield Vast Amounts Of Information, STANFORD.COM (Mar. 12, 2014), http://news.stanford.edu/news/2014/march/nsa-phone-surveillance-031214.html

23 To be fair, this dataset was even smaller—the researchers determined religions correctly in 11 of the 15 participants they looked at.

24 Mayer & Mutchler, supra note 21.

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Indeed, it is not at all hard to infer what one study participant was up to

when she contacted a home improvement store, locksmiths, a hydroponics

dealer, and a head shop during the study. These results seriously undermine

the government’s position that metadata is not that big a deal. They also cut

directly against United States District Court Judge William Pauley’s

assertion in ACLU v. Clapper. The judge, dismissing a challenge to the

constitutionality of NSA data collection, said that the ACLU’s privacy

concerns were just a parade of horribles.25

According to one security expert, indiscriminately vacuuming all

metadata up in this way showed an “extraordinary repudiation of any

pretence [sic] of constraint or particularized suspicion.”26 These NSA

activities were the first of the Snowden revelations to detail just how far the

agency’s mission had transformed from its original focus on foreign

intelligence gathering.

Although the Verizon metadata story was the first to break, the

Snowden files continue to shed light on the Intelligence Community

generally and the NSA specifically.

2. Wiretapping the Internet: PRISM

PRISM27 is the code name28 of a massive clandestine surveillance and

data mining tool operated by NSA since at least 2007. Britain’s

Government Communications Headquarters (GCHQ) participates in PRISM

as well. The Snowden files show that PRISM is the primary raw-data tool

employed by the NSA, and that it operates by collecting information from

25 ACLU v. Clapper, No. 13-3994 (S.D.N.Y. Dec. 27, 2013), available at https://www.aclu.org/files/assets/order_granting_governments_motion_to_dismiss_and_denying_aclu_motion_for_preliminary_injunction.pdf

26 Greenwald, supra note 16 (quoting Julian Sanchez, a surveillance expert with the Cato Institute).

27 “PRISM” may be an acronym—“Planning Tool for Resource Integration, Synchronization, and Management”—that has existed in military jargon for some time.

28 Officially, PRISM is known as SIGAD (SIGINT Activity Designator) US-984XN.

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major Internet players such as Apple, Google, Microsoft, and Facebook, a

group that NSA refers to as the “current providers.”29

Although it is still somewhat unclear as to the complicity of each

provider, some have speculated that PRISM may not extract data from the

providers’ servers directly. Instead, it may be that PRISM is essentially a

wiretap device that plugs into the Internet backbone of Tier 1 providers,

thereby collecting a copy of each byte of data as it flows from one point to

another [map of undersea fiberoptic cables connecting the world]. However,

other information suggests that upsteam data collection (i.e., the Tier 1

wiretaping) occurs separately and is separate from the PRISM program

itself.30 For this essay, however, the precise mechanism that empowers

PRISM is not particularly important—what matters is the absolutely

incredible amount of data that NSA collects and organizes.

It is true that PRISM is probably not a dragnet (in precise terms)

because NSA does not necessarily store all data available to it. But, NSA is

collecting wholly intra-U.S. communications made by U.S. citizens based

of the sheer volume of data collected and NSA’s own internal

“minimization”31 procedures. Indeed, NSA tells its analysis that accidental

collection of an American’s communication is “nothing to worry about”32—

29 NSA Slides Explain The PRISM Data-Collection Program, WASH. POST (June 6, 2013), http://www.washingtonpost.com/wp-srv/special/politics/prism-collection-documents/. The complete list of “current providers” is extensive, and seems to contain almost all important internet companies. Id.

30 Id. 31 “Minimization” means the process through with the NSA targets individuals for

surveillance, and supposedly complies with section 702 of FISA, codified at 50 U.S.C. § 1881a. According to the Electronic Frontier Foundation, Americans still have a lot to worry about with regard to the so-called minimization. Kurt Opsahl & Mark Rumold, Reassured by NSA's Internal Procedures? Don't Be. They Still Don't Tell the Whole Story, EFF.ORG (June 21, 2013), https://www.eff.org/deeplinks/2013/06/recently-revealed-nsa-procedures-likely-ones-found-unconstitutional-fisa-court.

32 Barton Gellman & Laura Poitras, U.S., British Intelligence Mining Data From Nine U.S. Internet Companies in Broad Secret Program, WASH. POST (June 6, 2013), http://www.washingtonpost.com/investigations/us-intelligence-mining-data-from-nine-us-

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even though collecting such information without a warrant is illegal. And,

unlike the Verizon metadata collection mentioned above, PRISM actually

collects the content of the communications. For instance, PRISM collects

email, video & voice chats, VOIP calls, and social networking data.33

This combination—the type of data collected along with the low

threshold to collect it—means that NSA is watching and listening to

American citizens. According to Senator Mark Udall, as long as the NSA

inadvertently or accidentally collected the information in the first place,

“there is nothing [in the law] to prohibit the intelligence community from

deliberately search[ing] for the phone calls or e-mails of specific

Americans.”34

If the content-oriented and non-targeted nature of PRISM are

interesting, then so are NSA’s reasons for implementing it in the first place.

According to the NSA, it built PRISM to overcome shortcomings in the

normal FISA procedure of obtaining warrants for each intercept request. 35

PRISM simultaneously takes advantage of and negates the U.S.’s Internet

home field advantage. Because much of the Internet’s physical architecture

exists in the U.S., NSA has excellent access to that architecture. But it also

needs individual warrants for even wholly non-U.S. targets if the collection

happens on U.S. soil. That is, FISA requires a warrant to monitor foreigners

when that monitoring actually takes place on U.S. soil, even if the

communications are only incidentally traveling through the U.S. from one

internet-companies-in-broad-secret-program/2013/06/06/3a0c0da8-cebf-11e2-8845-d970ccb04497_story.html.

33 NSA Slides Explain The PRISM Data-Collection Program, WASH. POST (June 6, 2013), http://www.washingtonpost.com/wp-srv/special/politics/prism-collection-documents/; Glenn Greenwald & Ewen MacAskill, NSA Prism Program Taps in to User Data of Apple, Google and Others, THE GUARDIAN (June 6, 2013), http://www.theguardian.com/world/2013/jun/06/us-tech-giants-nsa-data.

34 Id. (quoting a Dec. 27, 2012 Senate floor debate). 35 Greenwald & MacAskill, supra note 33.

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foreign place to another.36 According to NSA, “FISA was broken because it

provided privacy protections to people who were not entitled to them.”37

Apparently, the NSA does not believe in a fundamental privacy right.

After the PRISM-related disclosures, some Internet companies sought

and obtained governmental permission to disclose some information about

the nature and number of government FISA requests. However, these so-

called “transparency reports” reveal only aggregated data and are therefore

not particularly telling. Facebook, for instance, received between zero and

999 requests for user data (in the form of National Security Letters) during

the last half of 2013.

3. Devouring an Entire Country’s Voice Communications: MYSTIC

In a more recent disclosure, the Snowden files provided insight into a

NSA surveillance program called MYSTIC, which is capable of recording

100% of a foreign country’s telephone calls. According to a senior program

manager, MYSTIC is somewhat like a time machine—it allows retroactive

retrieval of calls for up to one month so that NSA need not identify a target

for surveillance in advance.38

Begun in 2009 and operational in 2011, MYSTIC keeps a 30-day rolling

buffer of “every single” phone conversation in a target nation.39 (The

Washington Post did not disclose the name of the target nation at the

request of U.S. officials but some suspect that nation is Iraq.)40 Although

36 Id. 37 Id. (quoting a NSA presentation acquired through the Snowden files). 38 Barton Gellman & Ashkan Soltani, NSA Surveillance Program Reaches ‘Into The

Past’ To Retrieve, Replay Phone Calls, WASH. POST (March 18, 2014), http://www.washingtonpost.com/world/national-security/nsa-surveillance-program-reaches-into-the-past-to-retrieve-replay-phone-calls/2014/03/18/226d2646-ade9-11e3-a49e-76adc9210f19_story.html.

39 Id. (quoting the leaked MYSTIC PowerPoint briefing deck). 40 Glenn Greenwald, NSA Blows Its Own Top Secret Program In Order To

Propagandize, THE INTERCEPT (Mar. 31, 2014), https://firstlook.org/theintercept/2014/03/31/nsa-worlds-blows-top-secret-program/.

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originally rolled out against only the one target nation, the most recent

secret intelligence budget suggests that MYSTIC is up and running on more

countries, or will be in the near future. And, unlike other NSA bulk-

collection programs that collect only metadata, MYSTIC is directed at voice

specifically. This cuts against the commonly-held notion that voice

communications are less suited than text for intercept and storage. Indeed,

this type of capability may be driving the NSA’s need for mega data storage

facilities like the one in Bluffdale, Utah.41

According to U.S. officials, this sort of data vacuum is highly valuable

even though almost of the data sucked up is not relevant to American

security interests. As a spokeswoman for the National Security Council put

it, new or emerging threats are “often hidden within the large and complex

system of modern global communications, and the United States must

consequently collect signals intelligence in bulk in certain circumstances in

order to identify these threats.”42 Indeed, the 30-day buffer of voice

communication allows an analyst to uncover a new name or telephone

number of interest after the fact and immediately pull up a list of that

target’s movements, associates, and plans.

The government also acknowledges that many of the conversations

collected involve Americans, but NSA does not try to filter those calls out

of the collection scheme. Instead, NSA defines any American conversations

as “collected incidentally,” which exempts those conversations from many

protections they would otherwise have. Under NSA’s minimization

procedures, the names of U.S. callers are generally redacted (subject to

several wide exceptions), but the conversations themselves are still

41 Some sources, including England’s The Star and Daily Mail, have reported that the Utah data center is code named “Bumblehive.” However, Fox News claims that code name is phony. What We Know About The NSA's Secret Data Data [sic] Warehouse In Utah, FOX NEWS (June 13, 2013), http://www.foxnews.com/tech/2013/06/13/what-we3-know-utah-nsa-mega-data-warehouse/.

42 Gellman & Soltani, supra note 38.

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available for use in intelligence reports and briefings.43

Such wide-ranging technological abilities were not known before the

release of the Snowden files, however, and the government criticizes the

revelation in spite of privacy concerns. Speaking about programs like

MYSTIC, the NSA claims such disclosures are “highly detrimental to the

national security of the United States and of our allies, and places at risk

those we are sworn to protect.”44 Indeed, the mass collection is so important

to the government that President Obama recently rejected an independent

panel’s suggestion that U.S. conversations be purged from the system upon

detection.

4. Other Revelations

As noted, the depth and breadth of the Snowden files is beyond the

scope of this essay. Reporters have only released a small portion of the

cache thus far, so more revelations are very likely in the coming months and

years. Recently, the American Civil Liberties Union released The NSA

Archive, which contains the full text of all the documents released. The

Archive allows keyword searching and robust filtering of the cache.45 Those

interested in this topic should continue to engage with the media and their

Congress delegation. Chang is coming, discussed in part II below, but what

the change will look like remains unknown—be part of the discussion.

II. THE SNOWDEN FILES: HARBINGER OF CHANGE

In January of 2014, President Obama announced that he wanted to stop

NSA from collecting call records in bulk while still preserving the agency’s

ability to do so when necessary. The proposal that followed asks the FISC

43 Id. 44 Id. 45 Emily Weinrebe, Introducing the ACLU's NSA Documents Database, ACLU.ORG

(April 3, 2014), https://www.aclu.org/blog/national-security/introducing-aclus-nsa-documents-database.

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to extend the current program’s authority for three more months, but the

administration hopes to implement changes thereafter with the help of

Congress. There are three major prongs to the proposed new data collection

program.46

First, the NSA will stop its bulk collection of American’s calling habits

and metadata. Second, the phone companies themselves will retain the bulk

metadata records and make them readily available to the NSA on a per-

order basis (rather than en masse, as happens now). Third, the changes

would also implement judicial oversight of queries to the database itself

through the FISC process.47 (As it now stands, NSA analysts may search

through any data already collected without judicial permission to do so.)

In announcing the new proposal, President Obama acknowledged that

“fears about our privacy in this age of the Internet and big data are

justified.”48 However, he also clung to the idea that mass data collection is a

useful tool in the fight against terrorism, even though, according to the N.Y.

Times, the “government has been unable to point to any thwarted terrorist

attacks that would have been carried out if the program had not existed.”49

From a privacy advocate’s standpoint, the President’s proposal, which

he urged Congress to implement quickly, leaves much to be desired. For

instance, the proposal refers to U.S. citizens as “consumers” in some

46 President Obama’s original proposal in January 2014 also calls for the inclusion of a panel of properly-cleared public advocates who can represent the public interest, but only when the FISA court encounters a novel issue of law. Brian Fung, Everything You Need To Know About Obama’s NSA Reforms, In Plain English, WASH. POST (Jan. 17, 2014). However, the administration’s fact sheet about the reforms, from March 2014, does not include that proposal.

47 Zeke J. Miller, Obama Calls for Congress to Pass NSA Reform ‘Quickly’, TIME.COM (Mar. 25, 2014), http://time.com/37173/obama-calls-for-congress-to-pass-nsa-reform-quickly/.

48 Id. 49 Charlie Savage, Obama to Call for End to N.S.A.’s Bulk Data Collection, N.Y.

TIMES (Mar. 24, 2014), http://www.nytimes.com/2014/03/25/us/obama-to-seek-nsa-curb-on-call-data.html.

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instances50 and the Electronic Frontier Foundation rates the proposal at 3.5

out of 12. Additionally, why does Congress need to legislate these data

collection and access reforms—the overreach was instituted exclusively

through executive branch powers, should the executive also rein itself in?51

However, the proposal of any reform at all comes after many months of

governmental posturing—the government vigorously asserted that NSA’s

actions were completely legal, necessary, and righteous. Therefore, these

proposals, modest as they are, signal a significant change in the post-

Snowden-revelations rhetoric.

III. ANALYSIS

This part analyzes the diametrically opposed reactions to the Snowden

files that occur at either side of the spectrum. The differences are set forth in

subpart A. Then, subpart B reconciles those views by suggesting that, when

both sides actually engage in a meaningful conversation, the good results of

Snowden’s acts far outweigh the bad.

A. Two Views, One Set of Files

Wide disparity exists across the United States in the response that

American citizens have to Mr. Snowden and his disclosures. On one end of

the spectrum, the security hawks present leaking the files as a traitorous act

with grave national security implications. At the extreme, some claim that

the leaks will lead to American deaths.52 On the other side, privacy

advocates view the disclosures as essential information concerning

governmental overreach and constitutional violation. In their view, such

50 Peter Van Buren, Dissecting Obama's Proposed NSA Reforms, HUFFPOST.COM (Mar. 28, 2014), http://www.huffingtonpost.com/peter-van-buren/dissecting-obamas-propose_b_5048694.html.

51 The pessimistic view is that this is simple smokescreen for political legitimacy. 52 Julia Angwin, NSA Chief: Snowden Leaks Will Cause Deaths, WSJ.COM (Oct. 10,

2013), http://blogs.wsj.com/washwire/2013/10/10/nsa-chief-snowden-leaks-will-cause-deaths/.

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The Snowden Disconnect

knowledge empowers society to make cogent choices concerning privacy

and security and Snowden should be hailed, not condemned.

However, the current Snowden-based dialogue generally sees little

“conversation” taking place—both positions are talking past each other, not

to each other. This gives ride to an interesting, if not altogether unique,

situation. And until there is some remedy to it, there can be little progress

toward reconciling the interests of the two groups. Without a meaningful

dialogue, both sides will continue to dig in their heels and take positional,

rather than interest-based, postures.

Positional thinking is black and white—Snowden is a bad guy or a good

guy—but fails to understand the connection between the position and the

interests that underlie it. That is, security hawks forget that their interest is

in national security, not in trampling on the Fourth Amendment. Such a

positional approach ignores the interests of the other side (e.g., privacy

rights) and does not allow a meaningful conversation to take place.

Ultimately, this lack of conversation stems from the two diametrically

opposed ways of interpreting the Snowden disclosures. That is, the two

positions are not in conversation because they are not using the same lens;

each position views the Snowden revelations in completely different light.

To explain, this essay groups Snowden’s revelations in two distinct ways—

the red lens and the blue lens.

Through the red lens, Snowden’s revelations have done damage to the

U.S. security apparatus. Take disclosure of NSA’s MYSTIC program,

discussed supra Part I.B.3, for example. Assuming that MYSTIC is in fact

targeting Iraq, and Iraq did not know about the program, one can easily

imagine the damage done. Terrorists and security threats within that country

are now on notice that their communications are completely compromised;

before the Snowden files, they probably were not taking appropriate

precautions because they did not even know they were under surveillance.

In this view, it is not particularly important that some American

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The Snowden Disconnect

conversations might get swept up among the mass of Iraqi calls, and the

efficacy of NSA’s MYSTIC program is severely compromised.

Through the blue lens, Snowden’s revelations simply exposed a vast and

unknown security apparatus. For instance, the PRISM program and Verizon

metadata-collection disclosures, discussed supra Parts I.B.1–2, tell the story

of a government agency gone astray. The NSA, an agency that supposedly

only operated outside of the U.S., had instead turned its eyes and ears on the

homeland—surreptitiously collecting data about U.S. citizens that were on

American soil. Adding to that baseline, the fact that many large companies

seemed to be complicit, whether knowing or not, in the NSA’s data

collection meant to many people that Snowden revealed a military-

industrial complex that disregards large sections of the Constitution.

This major and fundamental difference trickles down into other aspects

of the Snowden affair and the media’s portrayal thereof. The position that a

person takes on the Snowden revelations depends on which version of the

Snowden account, illustrated above, that she accepts. For example, people

infer Snowden’s intentions based on the color of their own personal lens.

Those seeing red portray Snowden as an egotistic, self-interested attention

seeker who cares little for the safety of the United States. The blue-lens

people, though, portray him as a moral and principled patriot who risked it

all because of his convictions.

Two reasonable people can take radically different positions on the

whole affair based simply on their own bias—elevating one view

automatically subjugates the other. In this way, privacy advocates and

security hawks are really not even part of the same conversation.

B. The Disconnects, Reconnected

Understanding the viewpoint disconnect illustrated above informs the

associated disconnect between Snowden the hero versus Snowden the

traitor. Because the security hawks only see the harm that Snowden did,

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The Snowden Disconnect

they call for his prosecution. Privacy advocates take the opposite line,

concluding that his disclosures fueled democratic debate and cast light into

a dark area of government action—and that Snowden should therefore be

indemnified. However, arriving at a real answer—whether Snowden is a

hero or a traitor—requires rejecting the notion that this is a positional black

or white debate, an either/or question. Indeed, the only way to find the

“right” answer is to balance the benefits produced by the Snowden files

against the harms. And then, to apply that analysis to United States

democracy.

So far, the government has been unwilling to engage in such a balanced

inquiry. Indeed, President Obama’s proposed reforms to the NSA’s bulk

data collection policy do not even acknowledge the Snowden files as the

precursor (or even a precursor) to the proposal. It is disingenuous for the

government to disclaim or ignore such an obvious connection; one must

infer that President Obama had some purpose for avoiding it. One obvious

purpose for avoiding a direct discussion of the Snowden-to-reform

connection is to maintain the ideological disconnect between the two.53 Of

course, maintenance of the disconnect is an illegitimate policy rationale.

This is a sort of political doublethink. If the Snowden files are not the

impetus for these proposed changes, then the executive can take credit for

acting on its own to improve Americans’ privacy protections (even though,

facially, that is absurd). The intertwined result is that the executive will

continue to push for Snowden’s extradition and prosecution.54 Though of

53 A less nefarious purpose might be to avoid compromising the criminal case against Snowden. However, that purpose still places a position (Snowden is guilty!) above an interest (national security may require some invasion of privacy) and fails to persuade in a representational democracy that vaunts the marketplace of ideas.

54 See, e.g., E.L., Treachery And Its Consequences, THE ECONOMIST (Jan. 10, 2014), http://www.economist.com/blogs/democracyinamerica/2014/01/snowden-case-prosecution; Grant Gross, Petitions Call On US Government To Leave Snowden Alone, PCWORLD (Mar. 25, 2014), http://www.pcworld.com/article/2111700/petitions-call-on-us-government-to-leave-snowden-alone.html.

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course these positions are fundamentally inconsistent, they allow the

executive to simultaneously play both sides—appease the privacy advocates

but remain “tough” on terrorism for the security hawks.

This also allows the executive to avoid answering some of the hard

questions. For instance, Director of National Intelligence James Clapper

recently admitted that the NSA investigates “US persons” without

warrants.55 Even if such actions were legal, which is highly suspect, then

Clapper still lied about his agency’s actions to directly to Congress. Thus

far, there have been no calls for punishment. What is the lesson here, that

lying to cover up eviscerating the Constitution is better than telling the truth

to protect it?

This, of course, is highly hypocritical. Is it really breaking the law to tell

the public that one of its leaders is breaking the law? Would Deep Throat

have been prosecuted for revealing the Watergate scandal to The

Washington Post?

These questions cannot be answered without an honest accounting of

the Snowden files, and an honest accounting requires balancing the good

with that bad, as discussed above. Here, the balance is clear.

Our country has a long history of rejecting the overreach of authority. It

is why and how we exist. Henry Thoreau and other abolitionists rightly

detested slavery and refused to pay the taxes that supported it. After being

jailed for his conscience, Thoreau wrote Civil Disobedience and argued

powerfully that individuals cannot allow governments to overrule and that

citizens have a duty to avoid being agents of injustice. Martin Luther King,

Jr. went one step further: “one has a moral responsibility to disobey unjust

laws.” Indeed, an unjust law is no law at all.

Patrick Henry wanted either liberty or death and nothing in between; the

55 Spencer Ackerman & James Ball, NSA performed warrantless searches on Americans' calls and emails – Clapper, THE GUARDIAN (Apr. 1, 2014), http://www.theguardian.com/world/2014/apr/01/nsa-surveillance-loophole-americans-data.

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The Snowden Disconnect

Declaration of Independence itself, codified in the Constitution, recognizes

the unalienable right for individuals to be secure in their persons and

effects. Indeed, one of the cases belli for the American Revolution was the

British Crown’s issuance of writs of assistance, which were generalized

warrants akin to National Security Letters from the FISC. Indeed, that

grievance led directly to the Fourth Amendment itself.

Benjamin Franklin is oft quoted with the enduring statement, “They

who would give up essential Liberty, to purchase a little temporary Safety,

deserve neither Liberty nor Safety.”56 Here, though, the government is

trying to take liberty in order to give safety, without an accurate accounting

of that transaction. Snowden’s revelations are a glimpse at the national

blotter, remind us that the government’s power derives from its citizen’s

liberty, not the other way around, and gives the nation a chance to take back

the liberty that it did not even know it had lost.

CONCLUSION

In the end, the lack of any honest accounting from the executive is itself

proof that the Snowden files have done more good than harm. If contrary

facts existed, surely the government would have produced them by now. As

it stands, the Snowden files have done far more good than they have done

harm. It is not congruent for the government to simultaneously engage in

“fixing” the NSA’s surveillance apparatus while calling for Snowden’s

prosecution. The ends, in this case, have justified the means. Like Daniel

Ellsberg, history will look favorably back at Edward Snowden and his trove

of security revelations.

Therefore, the U.S. needs to reconsider its position on this issue,

particularly in terms of the pending criminal prosecution of Snowden. At

56 Benjamin Franklin, Pennsylvania Assembly: Reply to the Governor, FRANKLINPAPERS.ORG, http://franklinpapers.org/franklin/framedVolumes.jsp?vol=6&page=238a (capitalization in original) (last visited April 10, 2014).

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the very least, the U.S. should extend Snowden the same protections that he

would have enjoyed under the Whistleblower Protection Act57 (had he not

been a contractor). The U.S. should certainly drop both Espionage Act

charges, and continue its case on the Theft of Government Property charge

alone, if at all. However, if the government is serious about restoring trust,

which is essential both to American experiment and to national security, it

should drop all charges against Snowden. Leaving that distraction and

hypocrisy behind will be good for the country and good for the world,

allowing the United States to focus instead of implementing meaningful

reforms that address both security and privacy interests.

* * *

57 Pub. L. 101-12, 5 U.S.C. §§ 1201–1222. The Whistleblower Protection Act (WPA) provides statutory protections for federal employees who engage in “whistleblowing”—making a disclosure evidencing illegal or improper government activities. See L. Paige Whitaker, RL33918, The Whistleblower Protection Act: An Overview, Cong. Res. Serv. (2007), available at http://www.fas.org/sgp/crs/natsec/RL33918.pdf.

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