Again, it took the actions of a leaker to spur activity in Washington, D.C., and in the nation as a whole. Now Snowden has caused me heartburn. He did wrong in mishandling classified information. But his disclosures have made us more educated about how our government operates and how much privacy we have lost. Whatever we might think about him, we are in a better position to ensure that in the future lawbreaking is not required to address the exercise of secret, expansive government power.
Beware the Potential for the Abuse of Power
My greatest concern is the potential for the abuse of power. When you give power to government, it is a rare thing indeed for government to give it up. When that power is exercised in secret, dangers multiply. Power is not only given to the existing incumbents in office but also to those who will hold office in the future. When you look at these NSA programs, you have to look at their impact now, but you have to think about their impact in perpetuity. The potential for someone at some point to abuse that power and turn it against the American people is worrisome.
Even if we concede that those in positions of authority today have acted carefully, correctly, and honorably (and I do not make that concession), there is a potential slippery slope here. The temptation for government to use vast intelligence capabilities and unmatched spying technologies is strong. This power could be extended and abused in all sorts of areas—policing payment of taxes, preventing terrorism, addressing child abuse, or predicting illegal behavior. Who watches the watchers? Not just today, but for generations to come? We must be constantly on guard for abuse.
A Prediction
Given my concerns, my next point might be disconcerting. I believe that politicians in Washington, D.C., will make only modest changes to NSA surveillance programs and will essentially preserve them. Some constraints on government power might be enacted, but the policy of massive collection of data and surveillance of cyber communications will not fundamentally change. The main reason is that all the nation’s key political actors and institutions have repeatedly approved these programs.
Two presidents have backed them. Reforms that President Obama has taken or proposed largely address how the programs operate, not whether the exercise of such expansive power is appropriate. That distinction is important because it shows that the president supports far-reaching surveillance and intelligence programs.
The intelligence community—a powerful voice on national security issues—has resolutely defended these powers and programs and has resisted many changes, despite claims to the contrary. The various agencies that make up the intelligence community are convinced of the value of these surveillance programs and are determined to defend them. The FISC and other federal courts that are supposed to keep NSA activities in line with the Constitution have largely been deferential to national security authorities. For years, Congress supported the NSA programs. Although hearings have been held and bills proposed, as of this writing Congress still has not adopted any surveillance reform legislation because legislators remain seriously at odds about what to do.
Then we have the American people. The lack of outrage is palpable and perhaps signals they accept the expansion of government power and how the NSA exercises such powers. Even though on many matters they do not trust the government, here the majority of the American people appear to favor security over liberty.
What Must Be Done
Given that the government is likely to retain expansive surveillance powers, what do we do? We need to understand that the increased need in a democracy for secret intelligence activities creates heightened requirements for more robust debate, transparency, scrutiny, and oversight of such activities from all three branches of government. When this kind of extraordinary power is concentrated in the intelligence community, we have to make sure this power is subject to constitutional constraints managed through the checks and balances of our constitutional system. The checks on this power within the executive branch are commendable, but they are not sufficient in a government with separation of powers. What we have now does not reflect this principle. To make progress, we need much more vigorous oversight from the FISC, Congress, and the Privacy and Civil Liberties Oversight Board (PCLOB).
FISA, and especially the FISC role under that legislation, does not provide adequate accountability or privacy protections. The FISC should hear more than the government’s side. It must require more from the executive branch in terms of explaining the need for massive surveillance. It should analyze less intrusive alternatives for achieving the desired goals. It should make its legal opinions public. Its operations need more visibility. We have to lift the veil of secrecy from this court because secret judicial processes do not produce due process. We must get away from secret courts making secret rulings and creating secret law.
So far, I do not believe Congress has provided sufficient oversight of, or demanded enough accountability from, the intelligence community on NSA surveillance programs. I want congressional oversight that is robust, demanding, and sustained. Such oversight needs to produce clarity in facts, transparency in purposes and consequences, and accountability in the executive branch to the people’s elected representatives. Ask hard questions, demand and critically evaluate answers, explore alternative possibilities to achieve the ends sought, and regulate the exercise of surveillance power. All members of Congress—not just the few who sit on the select intelligence committees—have responsibilities here. This type of congressional engagement will stimulate more public involvement and produce legislation that more effectively balances the need for intelligence activities with other political interests and civil liberties.
The PCLOB was established on the basis of a recommendation from the 9/11 Commission. But the story of its establishment underscores the serious challenge of producing the kind of oversight needed in this context. For years, the recommendation to create this board was ignored. Every time I testified during this period, and that was many times, and in every conversation I have had with presidents, I urged action on this recommendation. Even with all my persuasive powers, it took twelve years before this board was finally established. But, when established, it was not given a budget or a staff. Eventually, the board got a budget and a staff.
The PCLOB has started to function in the wake of the Snowden leaks, producing reports on the telephone metadata program under Section 215 of the USA PATRIOT Act and surveillance of foreign targets conducted under Section 702 of FISA. These are important—and long overdue—steps that demonstrate the importance of the PCLOB. Subjecting surveillance and intelligence programs to external, independent review inserts more discipline, transparency, critical analysis, alternative approaches, and shared responsibility into this area of policy and law. The PCLOB must build on this promising start, and the president must take seriously its recommendations.
None of what I have suggested would, if implemented, guarantee that every violation of the law, procedural irregularity, or bad program will be prevented, detected, investigated, reported, or stopped. But stronger oversight rooted in the constitutional tradition of checks and balances will significantly improve the chances that we engage in surveillance and intelligence programs that protect national security, help our country internationally, and strike a better domestic balance between privacy and security.
With the vast expansion of our intelligence agencies, their aggressive exploitation of their extensive and intrusive powers, their astounding surveillance and monitoring capabilities, and the excessive secrecy wrapped around their activities, you and I are confronted with an unprecedented challenge to hold the government accountable and to constrain its reach into our lives.
It is true today as it was at our founding: The price of liberty is eternal vigilance.
4
U.S. Foreign Policy and the Snowden Leaks
DAVID P. FIDLER
The proposition that Edward Snowden’s disclosures of information about the National Security Agency have damaged U.S. national security and foreign polic
y is not controversial.1 Since June 2013, the U.S. government has been reeling at home and abroad from Snowden’s disclosures. These revelations harmed U.S. relations with allies and friendly nations, hurt U.S. technology companies globally, and helped U.S. adversaries.
The impact has been so significant that the leaks undermined the strategic U.S. foreign policy approach on cyberspace developed before Snowden entered history. This approach—captured by the “Internet freedom” idea—emphasizes protecting individual rights in cyberspace, promoting democracy through cyber means, accessing the economic benefits and technological innovations a global Internet generates, and strengthening multistakeholder Internet governance. The Snowden disclosures, by contrast, created the perception that the United States prioritizes national security over individual rights, spies on democracies and dictatorships alike, subjects technological innovation to its interests, and exploits the Internet without restraint to protect its security and project its power.
The strategic damage to U.S. foreign policy is bad enough, but even worse is that it occurred when the international system was transitioning to a more dangerous context characterized by increasing Chinese and Russian assertiveness, growing worries about global terrorism and extremism, and retreating U.S. influence. This transition is not anchored in the Snowden controversies; it reflects geopolitical and other political trends related to, among other things, the American withdrawal from Afghanistan, Russian intervention in Crimea and Ukraine, Chinese power and behavior in maritime disputes with Asian countries, and renewed concerns about conflicts and terrorism in the Middle East. Many countries believe the balance of power is shifting in ways detrimental to the United States and its allies, and U.S. foreign policy faces eroding credibility in both cyberspace and geopolitical space.
And, unfortunately, it gets worse. The damage complicates U.S. responses to the mounting foreign policy challenges. Historically, great powers have responded to intensified competition and perceived threats with heightened emphasis on material power, especially intelligence and military capabilities. Controversies created by Snowden, however, might handicap the cyber power of the United States but not that of its rivals. Unlike China and Russia, the United States is debating how to integrate cyber technologies as instruments of national security with its constitutional values, international legal commitments, and universalistic political ideology. What will emerge from this debate is not clear because of the acrimonious nature of American politics and the lack of easy answers. The rising tide of geopolitical and other threats heightens the urgency of U.S. foreign policy problems Snowden’s disclosures produced.
Once Upon a Time: U.S Foreign Policy on
Cyberspace before Snowden
In Man, the State and War, Kenneth Waltz analyzed the causes of war through three levels of analysis, or “images.”2 The “first image” explanation grounded the cause of war at the individual level, with Waltz exploring human nature. The “second image” focused on the nature of domestic political regimes as the cause of war. The “third image” identified the anarchical international system as the font of war. These levels of analysis prove useful in examining how U.S. foreign policy conceives of cyberspace in international relations.
Before Snowden, U.S. foreign policy characterized cyberspace in “first” and “second” image terms; policy should empower individual liberty and promote democracy in this new political ecosystem. These preferences informed U.S. support for the involvement of nonstate actors in managing the Internet, as manifested in multistakeholder processes that have characterized Internet governance from its earliest days.3 The main threat to individual liberty, democracy, and multistakeholder governance in cyberspace came from authoritarian regimes, a “second image” threat. These regimes wanted government control over Internet governance, posed cyber security problems for democracies, and repressed individual liberty through censorship and other infringements of civil and political rights in cyberspace.
Secretary of state Hillary Clinton’s speech on Internet freedom in January 2010 captured this perspective. Clinton described the Internet as “a new nervous system for our planet” and argued that U.S. policy supports “a single Internet where all of humanity has equal access to knowledge and ideas.” Recalling the Four Freedoms enunciated by President Franklin Roosevelt—freedom of speech, freedom of religion, freedom from fear, and freedom from want—she proposed a fifth freedom, the “freedom to connect—the idea that governments should not prevent people from connecting to the internet, to websites, or to each other.”4
Clinton described how the U.S. government promoted the freedom to connect through assistance to “individuals silenced by oppressive governments” in order to “enable citizens to exercise their rights of freedom of expression by circumventing politically motivated censorship.” Internet freedom, Clinton argued, “supports the peace and security that provides a foundation for global progress” because “asymmetrical access to information is one of the leading causes of interstate conflict.” This speech, and its promotion of individual rights and democratic politics in cyberspace, came after a controversy about the Chinese government’s infiltration of Google to collect information about dissidents,5 which reinforced the “second image” perspective infusing Clinton’s remarks.
The Obama administration’s International Strategy for Cyberspace (May 2011) reinforced Clinton’s Internet freedom speech. The strategy highlighted U.S. support for fundamental freedoms in cyberspace and for information flowing on an open, interoperable, and accessible Internet—objectives that empower individuals and the private sector. In addition, the strategy emphasized that multistakeholder Internet governance is integral to the U.S. vision for cyberspace because it preserves the Internet’s open, decentralized architecture, which “fuels the freedom of innovation that enables economic growth [and] . . . fuels the freedom of expression and association that enables social and political growth and the functioning of democratic societies worldwide.”6 Reflecting concerns about the cyber behavior of China and other authoritarian states, the Obama administration highlighted its commitment to “norms for state conduct in cyberspace” and working “internationally to forge consensus regarding how norms of behavior apply to cyberspace, with the understanding that an important first step in such efforts is applying the broad expectations of peaceful and just interstate conduct to cyberspace.”7
Pre-Snowden cyberspace controversies reinforced U.S. foreign policy framings of the Internet. The major disputes in the months before Snowden’s disclosures began included battles over Internet governance and mounting U.S. pressure against Chinese economic cyber espionage. Concerning Internet governance, China, Russia, and other countries pushed, at the end of 2012, to shift Internet governance toward more government control. This effort occurred at the World Conference on International Telecommunications (WCIT) held by the International Telecommunication Union to revise the International Telecommunication Regulations.8 The WCIT ended acrimoniously, with the United States opposing what the negotiations produced. The U.S. government objected to revisions that potentially opened new avenues for Internet censorship and for “government control over internet governance,” which the United States believes “can only be legitimately handled through multi-stakeholder organizations.”9
Following the WCIT came confrontation between the United States and China over allegations that the Chinese government engages in advanced, persistent, and large-scale economic cyber espionage against companies in the United States and other countries. In February 2013, Mandiant, a private cyber security firm, identified a Shanghai-based unit of the Chinese People’s Liberation Army as the source of intensive economic cyber espionage.10 Although the U.S. government expressed displeasure about Chinese economic cyber espionage before Mandiant’s report,11 the report increased pressure on the U.S. government to respond more vigorously to Chinese behavior. After the Mandiant report, the Obama administration released a new strategy to protect trade secrets of U.S. companies from cyber
and other kinds of theft.12 The Obama administration ratcheted up the diplomatic stakes by announcing that President Obama would confront Chinese leaders about economic cyber espionage at the Sino-American summit in early June 2013.13 Snowden’s first disclosures began as this summit convened.
This overview of U.S. foreign policy on cyberspace before Snowden began his leaks is not comprehensive; it does not, for example, cover U.S. positions on military, trade, and development issues concerning cyberspace. The overview was intended to communicate the leading U.S. foreign policy perspective, which framed international cyberspace challenges in terms of individual liberty, democracy promotion, and multistakeholder Internet governance. Concerns about U.S. intelligence and military cyber activities existed in the pre-Snowden period,14 but they tended to be less prominent than the “first image” and “second image” narratives U.S. cyberspace policymaking used.
And Now for Something Completely Different:
Snowden’s Disclosures and U.S. Foreign Policy
Snowden’s leaks transformed the context for U.S. foreign policy on cyberspace. The disclosures rampaged over the Internet freedom perspective and forced the U.S. government to defend itself against what the leaks unleashed at home and abroad. The transformation was painful no matter how one perceived Snowden’s actions. Responses from the Obama administration often compounded the discomfort and the adverse consequences.
The Snowden Reader Page 9