Box 1. Key U.S. Laws in the Snowden Disclosures
Fourth Amendment to the U.S. Constitution
“The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.”
Section 215 of the USA PATRIOT Act (50 U.S.C. §1861)
Section 215 authorizes the Director of the Federal Bureau of Investigation to “make an application for an order requiring the production of any tangible things (including books, records, papers, documents, and other items) for an investigation to obtain foreign intelligence information not concerning a United States person or to protect against international terrorism or clandestine intelligence activities, provided that such investigation of a United States person is not conducted solely upon the basis of activities protected by the first amendment to the Constitution.” Any such application must include “a statement of facts showing that there are reasonable grounds to believe that the tangible things sought are relevant to an authorized investigation (other than a threat assessment) . . . to obtain foreign intelligence information not concerning a United States person or to protect against international terrorism or clandestine intelligence activities[.]”
Section 702 of the Foreign Intelligence Surveillance Act (50 U.S.C. §1881a)
“Notwithstanding any other provision of law, . . . the Attorney General and the Director of National Intelligence may authorize jointly, for a period of up to 1 year from the effective date of the authorization, the targeting of persons reasonably believed to be located outside the United States to acquire foreign intelligence information.” Before implementing any such authorization, the Attorney General and Director of National Intelligence must submit to the Foreign Intelligence Surveillance Court for its review and approval a “written certification” that includes (1) targeting procedures to “ensure that any acquisition . . . is limited to targeting persons reasonably believed to be located outside the United States; and . . . prevent the intentional acquisition of any communication to which the sender and all intended recipients are known at the time of acquisition to be located in the United States”; and (2) minimization procedures that, among other things, “minimize the acquisition and retention, and prohibit the dissemination, of nonpublicly available information concerning unconsenting United States persons consistent with the need of the United States to obtain, produce, and disseminate foreign intelligence information[.]”
Box 2. The Right to Privacy in International Legal Texts
Universal Declaration of Human Rights (1948)
Article 12
No one shall be subjected to arbitrary interference with his privacy, family, home or correspondence, nor to attacks upon his honour and reputation. Everyone has the right to the protection of the law against such interference or attacks.
European Convention on Human Rights (1950)
Article 8—Right to respect for private and family life
1. Everyone has the right to respect for his private and family life, his home and his correspondence.
2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.
International Covenant on Civil and Political Rights (1966)
Article 17
1. No one shall be subjected to arbitrary or unlawful interference with his privacy, family, home or correspondence, nor to unlawful attacks on his honour and reputation.
2. Everyone has the right to the protection of the law against such interference or attacks.
Snowden made it clear that one of his primary objectives in disclosing classified documents was to expose NSA activities authorized under FISA that he believes violate statutory law and the constitutional rights of Americans, namely what came to be called the “telephone metadata program” (or “telephony metadata program”) and “Section 702 surveillance.” Under the FISC-approved telephone metadata program, the NSA collected telephone metadata (telephone numbers and the duration of calls, but not the content of calls) on virtually all calls made in the United States. Snowden holds that neither FISA nor the Fourth Amendment of the Constitution supports the collection of telephone metadata on every U.S. citizen. “Section 702 surveillance” refers to NSA activities under Section 702 of FISA, which permits, with FISC review, NSA surveillance from within the United States targeting non-U.S. persons believed to be located outside the country. Snowden thinks that Section 702 surveillance makes Americans’ communications with foreigners overseas subject to NSA data collection, use, and dissemination in violation of the Fourth Amendment. See Box 1 for the texts of these key U.S. laws implicated in the Snowden disclosures.
Snowden’s hostility to Section 702 surveillance does not end with U.S. law. He also made it clear that Section 702 has become the source of authority for the NSA to engage in bulk or mass surveillance of the communications of foreigners located outside the United States when collection occurs in the United States (such as a foreigner using Google mail). He believes that such mass surveillance violates the human right to privacy in international law, enshrined in the Universal Declaration of Human Rights and the International Covenant on Civil and Political Rights. Others made similar claims under the European Convention on Human Rights. The global scope of his concern about the right to privacy connects to the global nature of the manner in which he made disclosures about NSA activities. See Box 2 for the principles on the right to privacy in leading international legal instruments implicated by Snowden’s leaks.
NSA Cooperation with Foreign Intelligence Agencies
Snowden also released information about NSA activities with the intelligence agencies of other countries, including Australia, Canada, Germany, Israel, the Netherlands, New Zealand, Norway, Sweden, and—most prominently—the United Kingdom. These disclosures came in two basic forms. Many leaked NSA documents indicated that the U.S. government had shared them among the so-called “Five Eyes,” the intelligence agencies of the United States, Australia, Canada, New Zealand, and the United Kingdom. Collaboration among the Five Eyes originated in the aftermath of World War II, but, as numerous documents disclosed by Snowden show, the relationship remains active and important to the intelligence agencies of each government.
Snowden’s leaks also included documents exposing collaboration between the NSA and the intelligence agencies of foreign governments. Sometimes these documents revealed information about NSA work with Five Eyes countries, most notably Australia, Canada, and the United Kingdom. We also learned about NSA relationships with the intelligence agencies of Germany and other governments beyond the Five Eyes. Through these documents, Snowden communicated that the NSA’s reach and influence went beyond its own activities and affected the intelligence practices of other governments. Based on documents from Snowden and its own reporting, Der Spiegel observed that, as between the NSA and the German intelligence agency (the Bundesnachrichtendienst (BND)), “the exchange of data, spying tools and knowhow is much more intense than previously thought.” This raised concerns among German legal experts that “the BND is potentially violating the German constitution by working with data received from the NSA.”7
Revelations about UK’s Government
Communications Headquarters
Although the NSA constituted Snowden’s primary target, he revealed a significant amount of information about the activities of the United Kingdom’s signals intelligence body, the Government Communications Headquarters (GCHQ). This information included documents exposing not only the close relationship between the NSA and GCHQ but also s
ome of GCHQ’s own surveillance activities. Specifically, Snowden provided the Guardian with documents about GCHQ’s TEMPORA project, under which GCHQ gained access to massive streams of telephone and Internet communications by tapping fiber-optic cables. The nature and scale of this surveillance prompted Snowden to argue that GCHQ is “worse than the U.S.”8 Snowden’s revelations about GCHQ’s cooperation with the NSA and its own surveillance programs provoked claims in the United Kingdom that GCHQ was violating British law, including obligations under the right to privacy in the European Convention on Human Rights.
NSA Spying on Foreign Countries
Another major feature of Snowden’s disclosures involved exposing NSA espionage targeting foreign countries, including close allies and fellow democracies, and spying on international institutions, such as the European Union (EU) and the United Nations (UN). These revelations proved embarrassing and, in many cases, damaging to U.S. foreign policy and bilateral relations with the affected countries. China, a political and economic rival of the United States and a country the U.S. government had accused of cyber espionage, did not miss the opportunity to hit back at the United States, citing in particular Snowden’s release of information about the scale and intensity of U.S. cyber espionage against China. Brazil and Germany, friends of the United States, reacted angrily to news that the NSA had spied on their leaders, Brazilian president Dilma Rousseff and German chancellor Angela Merkel. The Obama administration’s responses in both cases made the spats even worse. Rousseff rejected the explanation that the NSA spied on her as part of U.S. global counterterrorism efforts. President Obama stated he did not know that the NSA tapped Merkel’s mobile phone, suggesting that either the NSA was out of control or that spying on Germany’s top leader was not important enough for the president to know.
NSA Capabilities
Other Snowden disclosures revealed technological capabilities the NSA had or was developing. These capabilities included online metadata harvesting, storage of massive amounts of metadata, data mining, mobile phone tracking, cracking encrypted communications, smart phone surveillance, mapping social networks of targets, overcoming online anonymity tools, collecting contact lists from Internet services, acquiring foreign mobile phone location data, hacking computers not connected to the Internet, bulk collection of foreign text messages, and implanting malware on the computers of surveillance targets. These capabilities reveal the NSA developing tools to manage, mine, and manipulate digital data and communications, efforts that reflect how much digital technologies and the Internet have transformed the ways individuals and institutions communicate locally, nationally, and globally. The NSA’s formidable technological capabilities, and their robust use, led critics to argue that U.S. policy appeared to embrace what was technologically possible at the expense of what was politically principled and/or prudent, contributing to expedient or aggressive interpretations of relevant laws.
Responses to Snowden’s Disclosures
In interviews and written statements, Snowden made it clear that part of his motivation for revealing NSA secrets was to provoke public debate in the United States and other countries about governments’ power to conduct surveillance of digital communications on a massive scale. And provoke debates he did. The responses to his actions fall into three broad areas of debate—about Snowden himself, about the secret programs and activities he exposed, and about what should be done in light of what we learned from his revelations.
To say Snowden became a divisive figure would be something of an understatement. His actions fueled antagonistic “patriot” and “traitor” narratives about the man, his motivations, his impact, and his place in history. While other episodes in American history involve individuals breaking the law to reveal classified information, there has never been anyone like Snowden, what he did, and how he did it. Even though Snowden held government and private-sector positions that gave him access to classified information,9 he is not a Cold War–type “mole,” planted by a foreign intelligence agency to pass secret information from the U.S. government directly to an adversary. Although often compared to Bradley/Chelsea Manning, who provided Julian Assange and Wikileaks with thousands of classified U.S. government documents, Snowden is not, as Manning became, an overwhelmed, troubled, and marginalized person in the events he precipitated. Snowden has been a far more consequential figure in explaining his actions, engaging his detractors, and attracting supporters around the world. In that sense, in the eyes of some, Snowden has been linked with the tradition of civil disobedience and has been connected, for example, with Daniel Ellsberg’s violation of U.S. laws to make public the classified Pentagon Papers on U.S. policy in Vietnam in the early 1970s.
For others, Snowden violated important laws, betrayed his country, damaged its interests and capabilities, helped its adversaries, fled like a coward, and—under the protection of Vladimir Putin—anointed himself guardian of American ideals and global human rights. Indeed, the dissonance between what Snowden claims to be defending—fundamental individual rights enshrined in the Constitution and protected in international law—and his acceptance of temporary asylum for one year and then a three-year residency in Russia has, to many, tarnished his credibility. An investigation by nongovernmental organizations concerned about the right to privacy described Russia in fall 2013—when Snowden began his temporary asylum—as a “surveillance state” that intercepts “all electronic utterances” through “an Orwellian network that jeopardizes privacy and the ability to use telecommunications to oppose the government.”10
Although Snowden could not get to Venezuela, his willingness to accept asylum from Nicolás Maduro, president of Venezuela, did not improve matters in this regard. In its World Report 2014, Human Rights Watch noted that under Maduro and his predecessor, Hugo Chávez, Venezuela experienced “the accumulation of power in the executive branch and the erosion of human rights guarantees that enabled the government to intimidate, censor, and prosecute its critics.”11 Under Maduro, Venezuela withdrew from the American Convention on Human Rights (a decision condemned by Amnesty International12) and—with Ecuador and Bolivia (two other countries Snowden thanked for their human rights stance)—“supported a campaign to undermine the independence of the Inter-American Commission on Human Rights, and limit the funding and effectiveness of its special rapporteur on freedom of expression.”13
The intensity of the debate about Snowden has counterparts in the back-and-forth arguments about the NSA activities he exposed. Although generalizing about these arguments is risky, debates about the NSA programs, interpretations of law and policy, and capabilities oscillated between narratives of clarity and complexity. NSA critics and Snowden supporters often emphasized what they believed were obvious abuses of power and glaring violations of law cloaked in unjustifiable secrecy. Defenders of the NSA often tried to explain all the rules, procedures, institutions, and oversight that applied to the activities Snowden disclosed, with this deliberate layering of authority, restraint, and secrecy carefully safeguarding the nation’s security interests and privacy rights. Snowden believed the telephone metadata program was so illegal and wrong that it triggered his obligation to break the law. NSA supporters wondered how a program outside the ambit of the Fourth Amendment under Supreme Court jurisprudence, overseen by a federal court, repeatedly briefed to and approved by Congress, and subject to executive branch policies and rules could be as illegal and immoral as Snowden and others claimed.
Another prominent debate has been about reform—what should the United States and other countries do now the disclosures have been made? Part of Snowden’s legacy includes all the proposals for change made in the United States and around the world directly related to what he exposed. He triggered a vibrant, captivating, and—many would acknowledge, even if reluctantly—a needed normative exploration of many political, legal, and ethical issues. In January 2014, President Obama announced reforms to end the existing telephone metadata program and increase protections for the privacy interest
s of foreign nationals overseas affected by U.S. signals intelligence activities. More changes may be in the works, either through proposals before legislative bodies or rulings by national or international courts. The reform debate is not free from complexities and controversies, especially surrounding questions such as whether reform means tinkering with the status quo or radically revising the laws and practices governing surveillance activities. Many observers question whether Snowden-prompted reform in the United States and other democracies will have any spillover effect for international law or the surveillance practices of authoritarian governments, which prior to Snowden had been the leading human rights worry in this area.
Stressing Fault Lines in National Security Politics
In the national security politics of democratic countries, the enduring challenge is to meet security threats without diminishing individual liberty. Snowden’s actions accuse the U.S. government of damaging liberty through NSA programs ostensibly designed to keep America and its allies safe. The relationship between security and liberty can be unstable in democratic governance because it involves various political “fault lines,” places where the alignment of policies and laws shifts, settles, endures stress, and shifts again as a consequence of domestic and international developments. For example, perceived abuses by the U.S. intelligence community in the 1960s and 1970s produced political pressure that led to, among other things, enactment of FISA. The 9/11 terrorist attacks, combined with emerging challenges to national security posed by digital communications transiting cyberspace, produced another seismic shift, resulting in passage of the USA PATRIOT Act, creation of the telephone metadata program, and adoption of Section 702 of FISA in 2008.
The Snowden Reader Page 3