The Snowden Reader
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50. Cohen, “Civil Disobedience and the Law,” 5–7; James, “The Orthodox Theory of Civil Disobedience,” 491–95.
51. Smith, “Civil Disobedience and the Public Sphere,” 163.
52. Henry D. Thoreau, “Resistance to Civil Government,” in The Higher Law: Thoreau on Civil Disobedience and Reform, ed. Howard Zinn, 63–90 (Princeton, N.J.: Princeton University Press, 2004).
53. Arendt, Crises of the Republic, 77. Arendt criticized the orthodox view that civil disobedients should necessarily accept criminal punishment, hoping that it would “be possible to find a recognized niche for civil disobedience in our institutions of government.” Ibid., 99.
54. The rule of law is a contested concept. For an overview, see Brian Z. Tamanaha, On the Rule of Law: History, Politics, Theory (Cambridge: Cambridge University Press, 2004).
55. Peter Singer, Democracy and Disobedience (Oxford: Clarendon Press, 1973), 83–84.
56. The Espionage Act provoked creation of the National Civil Liberties Bureau, forerunner of the ACLU.
57. Geoffrey R. Stone, Perilous Times: Free Speech in Wartime—From the Sedition Act of 1787 to the War on Terrorism (New York: Norton, 2004), 173.
58. Harold Edgar and Benno C. Schmidt Jr., “The Espionage Statutes and Publication of Defense Information,” Columbia Law Review 73, no. 5 (1973): 929–1087.
59. The ACLU and Human Rights Watch have used Snowden’s case as a rallying cry for strengthening whistleblowing protections in the national security context. For an account of the existing legal regime, see David E. Pozen, “The Leaky Leviathan: Why the Government Condemns and Condones Unlawful Disclosures of Information,” Harvard Law Review 127 (2013–14): 512–635.
60. Interestingly, Snowden’s father initially hoped his son would return home to face criminal proceedings, but the Obama administration’s presumption of guilt led him to change his views. Associated Press, “Edward Snowden Better Off in Russia than US, His Father Says,” Guardian, July 26, 2013, http://www.theguardian.com/world/2013/jul/27/nsa-snowden-father-justice-russia. The fact that politicians described his son as a traitor, and even joked about assassinating him, probably did not inspire much confidence either.
61. “Edward Snowden, Whistle-Blower.”
62. Dworkin, Taking Rights Seriously, 207.
63. Ibid., 215.
64. Ibid., 215–16.
65. Harrop Freeman, “Response to Carl Cohen,” Rutgers Law Review 21, no. 1 (1966): 17–27; Telford Taylor, Nuremberg and Vietnam: An American Tragedy (New York: Bantam, 1971).
66. Ruti G. Teitel, Humanity’s Law (New York: Oxford University Press, 2011).
67. David Held, Democracy and the Global Order: From the Modern State to Cosmopolitan Governance (Stanford, Calif.: Stanford University Press, 1995).
PART II
THE SNOWDEN AFFAIR THROUGH
PRIMARY
DOCUMENTS
A. Revelations and Reactions
The first year of Snowden’s disclosures brought remarkable revelations, facilitated by Snowden’s collaboration with journalists, and elicited a cacophony of reactions to the leaks by affected parties. The primary documents in this section are organized into categories of important issues Snowden’s disclosures generated, with a sampling of documents from each category. This selection of documents provides a panorama of what Snowden did and how the U.S. government, foreign governments, private companies, and civil society groups responded.
Unconstitutional Abuse of Power or
Legitimate and Necessary Security Measures?
NSA Programs under the Foreign
Intelligence Surveillance Act
1
The Verizon Order
It all started with disclosure of this document, which came to be known as the “Verizon Order.” In it, the Foreign Intelligence Surveillance Court (FISC) ordered Verizon to produce to the NSA on a daily basis records of telephone calls—telephony or telephone metadata—between the United States and foreign countries and wholly within the United States, pursuant to Section 215 of the USA PATRIOT Act (codified as 50 U.S.C. §1861). Information sought under Section 215 for foreign intelligence purposes or to protect against international terrorism must be “relevant to an authorized investigation.” The Verizon Order revealed that the FBI, NSA, and FISC interpreted this requirement to mean the NSA could collect from Verizon, and from other telephone companies under similar FISC orders, metadata on millions of telephone calls made by Americans every day. Exposure of the telephone metadata program, and the associated interpretation of Section 215, triggered a political and legal controversy in the United States.
TOP SECRET//SI//NOFORN
UNITED STATES
FOREIGN INTELLIGENCE SURVEILLANCE COURT
WASHINGTON, D.C.
IN RE APPLICATION OF THE
FEDERAL BUREAU OF INVESTIGATION
FOR AN ORDER REQUIRING THE Docket Number: BR 13–80
PRODUCTION OF TANGIBLE THINGS
FROM VERIZON BUSINESS NETWORK SERVICES,
INC. ON BEHALF OF MCI COMMUNICATION
SERVICES, INC. D/B/A VERIZON
BUSINESS SERVICES
SECONDARY ORDER
This Court having found that the Application of the Federal Bureau of Investigation (FBI) for an Order requiring the production of tangible things from Verizon Business Network Services, Inc. on behalf of MCI Communication Services Inc., d/b/a Verizon Business Services (individually and collectively “Verizon”) satisfies the requirements of 50 U.S.C. § 1861,
IT IS HEREBY ORDERED that, the Custodian of Records shall produce to the National Security Agency (NSA) upon service of this Order, and continue production on an ongoing daily basis thereafter for the duration of this Order, unless otherwise ordered by the Court, an electronic copy of the following tangible things: all call detail records or “telephony metadata” created by Verizon for communications (i) between the United States and abroad; or (ii) wholly within the United States, including local telephone calls. This Order does not require Verizon to produce telephony metadata for communications wholly originating and terminating in foreign countries. Telephony metadata includes comprehensive communications routing information, including but not limited to session identifying information (e.g., originating and terminating telephone number, International Mobile Subscriber Identity (IMSI) number, International Mobile station Equipment Identity (IMEI) number, etc.), trunk identifier, telephone calling card numbers, and time and duration of call. Telephony metadata does not include the substantive content of any communication, as defined by 18 U.S.C. § 2510(8), or the name, address, or financial information of a subscriber or customer.
IT IS FURTHER ORDERED that no person shall disclose to any other person that the FBI or NSA has sought or obtained tangible things under this Order, other than to: (a) those persons to whom disclosure is necessary to comply with such Order; (b) an attorney to obtain legal advice or assistance with respect to the production of things in response to the Order; or (c) other persons permitted by the Director of the FBI or the Director’s designee. A person to whom disclosure is made pursuant to (a), (b), or (c) shall be subject to the nondisclosure requirements applicable to a person to whom an Order is directed in the same manner as such person. Anyone who discloses to a person described in (a), (b), or (c) that the FBI or NSA has sought or obtained tangible things pursuant to this Order shall notify such person of the nondisclosure requirements of this Order. At the request of the Director of the FBI or the designee of the Director, any person making or intending to make a disclosure under (a) or (c) above shall identify to the Director or such designee the person to whom such disclosure will be made or to whom such disclosure was made prior to the request.
IT IS FURTHER ORDERED that service of this Order shall be by a method agreed upon by the Custodian of Records of Verizon and the FBI, and if no agreement is reached, service shall be personal.
This authorization requiring the production of certain call detail records or “telephony met
adata” created by Verizon expires on the 19th day of July, 2013, at 5:00 p.m., Eastern Time.
Signed 04–25–2013 PO2:26 Eastern Time
Date Time
ROGER VINSON
Judge, United States Foreign
Intelligence Surveillance Court
Foreign Intelligence Surveillance Court, Secondary Order, In Re Application of the Federal Bureau of Investigation for an Order Requiring the Production of Tangible Things from Verizon Business Network Services, Inc. on Behalf of MCI Communication Services, Inc. d/b/a Verizon Business Services, April 25, 2013 [disclosed June 5, 2013].
Source: “Verizon Forced to Hand Over Telephone Data—Full Court Ruling,” Guardian, June 5, 2013, http://www.theguardian.com/world/interactive/2013/jun/06/verizon-telephone-data-court-order.
2
NSA PRISM and UPSTREAM Briefing Slides
People were still processing the June 5 exposure of the telephone metadata program when the next day brought a significant disclosure about NSA surveillance conducted under Section 702 of FISA. This FISA provision authorizes the U.S. government to conduct electronic surveillance within the United States for intelligence purposes against foreign nationals reasonably believed to be located outside the United States. Unlike the secret interpretation of Section 215 of the USA PATRIOT Act revealed by the Verizon Order, Section 702 was debated by Congress during consideration of the FISA Amendments Act of 2008 and in the courts during litigation that produced a February 2013 Supreme Court decision, Clapper v. Amnesty International, which held that the plaintiffs could not challenge the constitutionality of Section 702. Well before Snowden, Section 702 was understood to provide authority for the U.S. government to engage in broad, extensive surveillance against targets believed to be located outside the United States that would incidentally capture communications of persons in the United States.
Many of the documents released by Snowden were slides prepared by NSA personnel for internal intelligence community briefings that contained classified information to which Snowden had access as a contractor for the NSA. NSA briefing slides revealed two NSA activities under Section 702: the PRISM and UPSTREAM programs. Under PRISM, the NSA required U.S. companies, including those identified in the slides, to provide communications they managed to or from its foreign targets. Under UPSTREAM, the NSA tapped into privately owned fiber-optic cables carrying information to and from the United States to conduct surveillance on foreign targets. Both PRISM and UPSTREAM provided the NSA with communications metadata and content. As the slides indicate, the dominance of U.S. cyber companies meant that a significant portion of the world’s communications transited the United States, providing the NSA with a rich surveillance source. The first slide declares PRISM to be the signals intelligence activity used the most in NSA analytical reports. Disclosure of these Section 702 programs fanned the flames of concern ignited by the Verizon Order about the civil liberties of U.S. persons, and it provoked anger in foreign countries about NSA surveillance of their citizens’ communications.
NSA Briefing Slides on Surveillance Programs Undertaken Pursuant to Section 702 of FISA, April 2013 [disclosed June 6, 2013].
Source: “NSA Slides Explain the PRISM Data-Collection Program,” Washington Post, June 6, 2013 (updated July 10, 2013), http://www.washingtonpost.com/wp-srv/special/politics/prism-collection-documents/.
3
Robert S. Litt, General Counsel, Office of the Director of National Intelligence, Speech at Brookings Institution
Snowden’s disclosures about the telephone metadata and Section 702 programs, and the controversies the disclosures created, prompted U.S. government officials to react. This speech from the top lawyer in the Office of the Director of National Intelligence explains NSA activities under U.S. law, especially the telephone metadata program and PRISM surveillance conducted under FISA, and it defends their legality, effectiveness, and fidelity to the democratic values of the United States. The speech is a synthesis of the government’s early response to the firestorms caused by Snowden’s exposure of the telephone metadata and Section 702 programs.
I. Introduction
I wish that I was here in happier times for the Intelligence Community. The last several weeks have seen a series of reckless disclosures of classified information about intelligence activities. These disclosures threaten to cause long-lasting and irreversible harm to our ability to identify and respond to the many threats facing our Nation. And because the disclosures were made by people who did not fully understand what they were talking about, they were sensationalized and led to mistaken and misleading impressions. I hope to . . . correct some of these misimpressions today.
My speech today is prompted by disclosures about two programs that collect valuable foreign intelligence that has protected our Nation and its allies: the bulk collection of telephony metadata, and the so-called “PRISM” program. Some people claim that these disclosures were a form of “whistleblowing.” But . . . [t]hese programs are not illegal. They are authorized by Congress and are carefully overseen by the Congressional intelligence and judiciary committees. They are conducted with the approval of the Foreign Intelligence Surveillance Court and under its supervision. And they are subject to extensive, court-ordered oversight by the Executive Branch. In short, all three branches of Government knew about these programs, approved them, and helped to ensure that they complied with the law. . . .
Nevertheless, I fully appreciate that it’s not enough for us simply to assert that our activities are consistent with the letter of the law. Our Government’s activities must always reflect and reinforce our core democratic values. . . . But security and privacy are not zero-sum. We have an obligation to give full meaning to both: to protect security while at the same time protecting privacy and other constitutional rights. But although our values are enduring, the manner in which our activities reflect those values must necessarily adapt to changing societal expectations and norms. Thus, the Intelligence Community continually evaluates and improves the safeguards we have in place to protect privacy, while at the same time ensuring that we can carry out our mission of protecting national security.
. . .
II. Legal Framework
Let me begin by discussing . . . the legal framework that governs intelligence collection activities. And it is a bedrock concept that those activities are bound by the rule of law. . . . We begin, of course, with the Constitution. Article II makes the President the Commander in Chief and gives him extensive responsibility for the conduct of foreign affairs. The ability to collect foreign intelligence derives from that constitutional source. The First Amendment protects freedom of speech. And the Fourth Amendment prohibits unreasonable searches and seizures.
I want to make a few points about the Fourth Amendment. First, under established Supreme Court rulings a person has no legally recognized expectation of privacy in information that he or she gives to a third party. . . . Second, the Fourth Amendment doesn’t apply to foreigners outside of the United States. Third, the Supreme Court has said that the “reasonableness” of a warrantless search depends on balancing the “intrusion on the individual’s Fourth Amendment interests against” the search’s “promotion of legitimate Governmental interests.”
In addition to the Constitution, . . . statutes govern our collection activities . . . in particular, the Foreign Intelligence Surveillance Act, or FISA. FISA was passed by Congress in 1978 and significantly amended in 2001 and 2008. It regulates electronic surveillance and certain other activities carried out for foreign intelligence purposes. . . .
A final important source of legal restrictions is Executive Order 12333. . . . Section 2.3 of EO 12333 provides that elements of the Intelligence Community “are authorized to collect, retain, or disseminate information concerning United States persons only in accordance with procedures . . . approved by the Attorney General . . . after consultation with” the Director of National Intelligence. These procedures must . . . establish strict limits on collecting, retaini
ng or disseminating information about U.S. persons, unless that information is actually of foreign intelligence value, or in certain other limited circumstances . . . , such as to protect against a threat to life. These so-called “U.S. person rules” are basic to the operation of the Intelligence Community. . . .
. . .
III. Impact of Changing Societal Norms
Let me turn now to the impact of changing technology on privacy. Prior to the end of the nineteenth century there was little discussion about a “right to privacy.” . . . Indeed, in the 1890 article that first articulated the idea of a legal right to privacy, Louis Brandeis and Samuel Warren explicitly grounded that idea on changing technologies:
Recent inventions and business methods call attention to the next step which must be taken for the protection of the person, and for securing to the individual what Judge Cooley calls the right “to be let alone.” Instantaneous photographs and newspaper enterprise have invaded the sacred precincts of private and domestic life; and numerous mechanical devices threaten to make good the prediction that “what is whispered in the closet shall be proclaimed from the house-top.”
Today, as a result of the way digital technology has developed, each of us shares massive amounts of information about ourselves with third parties. . . . All in all, there’s little doubt that the amount of data that each of us provides to strangers every day would astonish Brandeis and Warren—let alone Jefferson and Madison.
And this leads me to what I consider to be the key question. Why is it that people are willing to expose large quantities of information to private parties but don’t want the Government to have the same information? Why . . . don’t we care if the telephone company keeps records of all of our phone calls . . . , but we feel very differently about . . . the same information being on NSA servers? This does not seem to me to be a difficult question: we care because of what the Government could do with the information.