One day I managed to seize an idea that had been hovering just out of reach. Usually I take notes with a keyboard, but I put this on paper.
What’s ‘here’ is ‘there’
The rest of it followed.
No bar to bulk ingest
Incidental
Collapses domestic/foreign distinction?
In a nutshell, my list assembled four thoughts that I had not put together before.
First, the information that Google stored for American account holders was just as likely to sit in Ireland as in Iowa. Google had big facilities in both places. Redundant data centers around the world, eight of them overseas, served as backup for one another and shared the workload of moving content across the internet. If one node slowed down, another picked up the slack. It had to be a lot more complex than that in a system so large, but load balancing was basic to any network design. That meant your Google data traveled overseas even if you never left the country yourself. An email from Austin to Boston might pass through Quilicura, Chile, or make its way to a backup there afterward.
Second, the NSA could and did tap into high-volume circuits overseas—gathering data “in bulk,” without discriminants. The agency did not keep everything it touched, not by a long shot, but it liked to touch whatever it could reach. And since American data passed overseas, bulk operations there were guaranteed to touch Americans at home.
Third, the NSA was allowed under Twelve Triple Three to keep “incidentally obtained information” about Americans as long as it did not target them deliberately for surveillance. “Incidentally” was a specialized legal term. It did not mean accidentally, unexpectedly, unforeseeably, or even undesirably. It meant that the NSA caught U.S. persons in nets that it cast with some other lawful purpose in mind. Collection remained incidental even when the NSA knew for certain that Americans would be swept in and was happy to have them. The NSA could hold on to the incidental data, and it did so. Once in hand, the American communications could be searched and analyzed along with the foreign stuff. With U.S. identities masked (sometimes), the information could be shared with other agencies. The law did not say “finders keepers”—it was more nuanced than that—but the NSA did not have to discard what it gathered about Americans in the course of business abroad.
Fourth, in consequence of the first three points, aggressive use of the NSA’s foreign intelligence-gathering powers could have as much impact on American privacy as domestic surveillance. It might have more. Overseas operations took place on a much larger scale. If information from South Carolina could be intercepted in Singapore, the law was barring one door and leaving another wide open. Spying from a distance might blow a hole in the rules against spying up close, even without any devious intent.
There had to be, conservatively, one hundred million American accounts among the more than one billion at Google. This story was not about “foreign intelligence” as a layperson could be expected to understand the term. With scarcely a word of public debate, we had found our way to a world in which the NSA could not spy on Americans one at a time without a warrant, but it could sweep them in by the millions. This was the foreseeable result of operations in bulk—“high volume,” “full take”—inside the Google cloud. And the NSA was allowed to presume, absent evidence otherwise, that information collected overseas belonged to foreigners. “Incidentally,” in this context, was a powerful word.
* * *
—
Daniel Ellsberg, the whistleblower of Pentagon Papers fame, stepped cautiously down a weathered staircase from a deck overlooking San Francisco Bay. Intent on his mission, he barely noticed the panoramic view. Ellsberg steered past a hot tub and opened the door to what “used to be an under-basement,” he explained when he gave me the tour.
A lifetime’s accumulation of books and papers filled the subterranean office, a warren of interconnected rooms. There were wobbly stacks of file boxes, some topped with wire baskets holding still more files. Narrow aisles divided uneven rows of bookcases. The shelves were labeled thematically: “EVIL,” “GENOCIDE,” “BOMBING CIVILIANS,” “BUSH.” Ellsberg had lost none of his outrage at the news of the world, none of his appetite for political combat. At eighty-two, his face lined but unsoftened, he still had the bearing of a raptor on the hunt.
In 1971, then a defense analyst with a Top Secret clearance, Ellsberg had sent a classified history of the Vietnam War to the New York Times and the Washington Post—seven thousand pages, enough to shatter the lies of two presidents about the war. He became an icon of dissent, the archetype of a leaker as agent of social change. Henry Kissinger, then Richard Nixon’s national security adviser, called him “the most dangerous man in America,” a badge that Ellsberg carried with fierce pride. Ellsberg became the first American ever charged with espionage for providing information to the press.
Now, four decades later, the same month I met the Google engineer, Ellsberg bent over a borrowed notebook computer. Unfamiliar software logged him into an anonymous account. Somewhere in Moscow, ten time zones away, Edward Snowden awaited Ellsberg online. Each man had played a notable role in his times. Their rendezvous, preserved as a transcript, was self-consciously historic but intended to remain tête-à-tête.
Snowden had granted no interview for broadcast or print since his arrival in Moscow. He professed not to care about his own reputation, but he kept a keen eye on his clips. He asked Ellsberg to keep their talk, even the fact of it, confidential. “The government has tried to construe some amazingly innocent things into scandalous statements, so I’ve been trying to minimize my footprint in the press to force a focus on the reform battle,” Snowden wrote.
Ellsberg accepted Snowden’s conditions, and the younger man seemed to relax. Even off the record, Snowden ordinarily calculated each word, but the older man’s exuberance pierced his façade. Their temperaments and politics were almost nothing alike. Snowden, the cool libertarian, did not tend to share the passions of the left. Over the next two hours and twenty minutes, even so, Snowden slowly let down his guard.
“Wow! This is very exciting for me!” Ellsberg typed, large hands crowding the compact keyboard. “If you’ve seen anything I’ve been saying about you and what you’ve done, you know that you’re a hero of mine.”
“For us both, then,” Snowden replied. “I don’t think there are many out there anymore who don’t respect what you’ve done. I deeply appreciate the things you’ve said and written. I think your history and clout really helped turn the PR spin around.”
Ellsberg had adopted Snowden publicly as a man in his image. No leak in American history, he declared, had been more important. “I’ve waited and hoped for forty years for someone like you,” he told Snowden as they began their chat. Three months earlier, he had written in the Guardian that Snowden proved “that the so-called intelligence community has become the United Stasi of America,” a reference to the dreaded former East German intelligence service. Snowden avoided inflammatory images of that sort, but he found Ellsberg inspiring. He had told me he watched a documentary about the Pentagon Papers with his girlfriend, Lindsay Mills, months before he went public with the NSA archive. He told Ellsberg it “did ‘harden’ my resolve.”
Ellsberg offered a dark theory to begin their discussion of the NSA. “[T]he reason I think they’re keeping targeting of individuals secret is that it gives them blackmail capability against Congresspersons and judges; and a total ability to find sources of journalists and end real investigative reporting,” he wrote. He elaborated at length. “Any thoughts on this mass- or individual blackmail potential?”
Snowden demurred. “The technical capability to do that is there,” he replied. “It wouldn’t even be hard. That said, I do not personally have knowledge of that (or even believe it)—if it’s true, it’s highly compartmented. Realistically, most day-to-day workers [at the NSA] are good people trying to do a good job. I think someone woul
d find a way to leak that.”
Ellsberg typed ahead of Snowden’s replies, throwing questions, digressions, hypotheses, and parentheses at a ferocious pace. “How are your spirits in Russia? Do you see any prospect of ever leaving?”
“My spirits are fine: I’m practically autistic in my ability to function for long periods without human contact.” Snowden dodged the second question.
“What got to you, pushed you over the edge?” Ellsberg asked.
Snowden gave a variety of answers to that question in public, including outrage at James Clapper’s denial in Senate testimony that the NSA “wittingly” collected data on millions of Americans. (Clapper testified long after Snowden made contact with journalists but before he sent us documents.) Here Snowden offered a more personal reply, alluding to his girlfriend’s online journals and the provocative self-portraits she photographed.
“Re: ‘tipping point,’ I can’t say. I think about it a lot. I think seeing Lindsay begin developing a web presence—a huge, beautiful, creative online footprint—and realizing how vulnerable it made her and the millions of innocents like her, caused something of a crisis of faith. I can’t point to any single thing. It was a recognition of the trends, and where they lead.”
Ellsberg asked Snowden to respond to some of his critics. “Are you really confident that, contrary to what armchair pundits assume, Russia and China have not been able to get your data?”
“Yes. It is not possible the RU or CN could have any data from me. I can’t go into the methods of protection, but it’s a physical [impossibility]. To get the data would require the expenditure of more energy than exists in the entirety of the universe.”
“What’s your answer to the argument that Americans aren’t benefited by your putting out so much about NSA spying on OTHER countries?” Ellsberg asked.
“There are two false presumptions there: 1) The whistleblower causes the harm, rather than the action (the spying). 2) That the spying is itself a benefit. I would argue that the NSA spying does not provide a public benefit commensurate to the risk. If we’re going to be a moral authority, we must act as one.”
By Snowden’s lights, foreigners deserved no less shelter from untargeted surveillance than did Americans. If there were no solid grounds to target a person, her data should be left alone. Snowden often used “probable cause,” the strict standard for a criminal search warrant, as the proper threshold for legitimate spying overseas. This was perhaps his most radical belief. Intelligence gathering abroad had never been subject to that kind of limit. Snowden disagreed at root with decades of constitutional analysis by federal courts and the core concept, really, of foreign espionage. Intelligence seeks information, not evidence of crimes.
“I believe our constitution protects everybody, not just citizens,” he told Ellsberg. “The declaration of independence does not declare that ‘all US Persons are created equal,’ does it? Much of my reasoning follows from that.”
Ellsberg, who had made no attempt himself to flee from American law, praised Snowden for seeking asylum abroad against espionage charges: “YOU COULD NOT BE FAIRLY TRIED IN THE US, UNDER THE CURRENT INTERPRETATIONS OF THESE LAWS.”
“The espionage act should have been struck down in 1917,” Snowden agreed, and he offered a novel, if impolitic, argument. “It perverts the system of incentives: why should a rational actor (who is not selling information to foreign governments) subject themselves to a legal system that will punish them as though they were selling information to foreign governments? They are incentivizing treason and disincentivizing whistleblowing. Basically, the espionage act is putting classified information (for example, the things in my head) at risk by forcing me to flee the US rather than allowing me to stay and mount a public interest defense (or face a reasonable penalty).”
Snowden had just acknowledged something he never entertained with me, even hypothetically: that his presence in Russia represented a potential security risk to the United States. Then Ellsberg asked him where the next whistleblower should go.
“That’s difficult. The obvious answer is Russia, because under their doctrine they would never return someone who future ‘actual spies’ might think of as a ‘walk in / volunteer,’ because it would prevent them from getting ‘actual’ walk-ins in the future.”
This was, I knew, an authentic expression of Snowden’s view, but he would not have said it in public. The point was awkward, easy to turn against him. Snowden meant: I am not a Russian asset, but the Russian government protects me because I look like one to other prospective assets. Moscow, he believed, could not treat him badly without harm to its recruiting.
There was no public evidence whatever that Snowden actually gave information to Russia. No official in a position to know ever claimed to me that the government had any. Snowden could not, on the other hand, prove the negative. The nearest he ever came to addressing it was in our December 2013 interview. “I will say—hypothetically speaking—is what would happen is you’d get pulled out of the line at the [passport] control, just like they do in any country in the world, and you go into a room with a bunch of people and they say, ‘Hey look, here’s the situation, here’s what we can offer you, blah blah blah, will you work with us? Do you have anything you can help us with?’ Can we be friends, basically. And you go, ‘Look, I don’t think that would be appropriate.’ That’s not what I’m doing. That’s not what this is about. And if you really wanted them to leave you alone you’d go, ‘I can’t have these conversations or I’m going to report them.’ What do you think they would do?”
By way of circumstantial evidence for his case, Snowden pointed out that he had continuous access to the internet during the thirty-nine days he was held in limbo at Sheremetyevo Airport; he had a witness with him, Sarah Harrison, and regular contact with journalists during that time. If Russian officers had taken a hard-line approach, as many American officials speculated, Snowden would more likely have been locked up and stripped of that outside contact and support. “If you’re with somebody else you’re not isolated,” he told me. “You don’t have that psychological fear. You’re in an airport that has wireless internet in every room. So they can’t bullshit you because you’ve got a laptop in front of you where you can fact check everything they say. It’s basically the strongest negotiating position you can have in a horrible situation.” Snowden did not need Russian government financial support. Russia could have made his life miserable and done much more to compel him, but Vladimir Putin had a vested interest in treating him with kid gloves. Snowden’s freedom posed no threat to Putin and gave considerable heartburn to the United States, keeping alive a story that disrupted U.S. diplomacy and politics. “I have no relationship with the Russian government at all,” Snowden told me. “I have not entered into any agreements with them. I don’t have contacts with them. It’s just not how this is going.” One piece of circumstantial support: Snowden discouraged me from bringing classified information to Moscow, which is hardly what a Russian asset would do. I was open to contrary evidence, but never found any.
In his conversation with Ellsberg, Snowden wrote that the “ideal” destination for someone like him would be a democracy with strong whistleblower protections and the will to stand up to pressure from Washington. It was hard to believe that such a country existed. He mentioned Iceland, Ecuador, and Uruguay, but how much would they really sacrifice to protect him, and for how long?
Over and over, Ellsberg returned to his lifelong preoccupation with leaks and leakers themselves. There were so many state crimes, so many secrets, so few the brave souls prepared to expose the truth.
“I desperately want more Snowdens,” he wrote to the younger man. “Do you have any insight into the question (I’ve faced, and asked myself, for 40 years: without much insight, I must say): Why YOU? And not ANY of those other guys, who had comparable access AND who shared your basic values and views about the wrongness of what was happening?’”
Later, when I came to visit, Ellsberg told me that Snowden gave only half an answer. “It’s obvious why most people don’t do it,” he said. “They don’t want to go to prison, don’t want to lose their jobs. But why don’t any of them do it? Why is it as rare as it is? The stakes are so great it would seem natural for some people to be willing to go to prison. We’re talking about ending a war, averting a war, possibly a nuclear war, or ripping up the Constitution.”
Ellsberg had made a point for years of interviewing every whistleblower he could identify. He documented each exchange in his exhaustive diary. (“1:46 pm: get ready for Gellman at 2,” he wrote on the day we met.) “What it comes down to is an approach to it that we all shared, which seems extremely natural to us,” he told me. “Since no one’s going to do it, it’s up to me.” Still, the puzzle remained. The man or woman who picks up that burden “is not normal,” Ellsberg admitted. “What is it these people have in common? I haven’t found much in terms of background.”
I found it fascinating that Ellsberg did not see it. True, he and Snowden bore little resemblance in life experience. The older man had served successfully as a Marine platoon and company commander; the younger had washed out through injury as an Army recruit. Ellsberg was a Harvard Ph.D. who blazed a fast track through the national security establishment, a certified member of the insider elite. He had bona fide expertise on the Vietnam study he leaked, having served on the team of three dozen scholars who wrote it. Snowden shared Ellsberg’s high intellect but not his credentials or institutional roots. He was an autodidact of no fixed curriculum, an outsider who slipped through cracks of opportunity to the inside. He had the vantage point of an observer on the periphery of the NSA, far from the center but privileged to roam. Administrative roles left his talent underemployed, disastrously so, in retrospect, from the agency’s perspective.
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