The Snowden Reader

by David P Fidler

  In terms of the mass surveillance programmes already revealed through the press, what proportion of the mass surveillance activities do these programmes account for? Are there many other programmes, undisclosed as of yet, that would impact on EU citizens rights?

  There are many other undisclosed programs that would impact EU citizens’ rights, but I will leave the public interest determinations as to which of these may be safely disclosed to responsible journalists in coordination with government stakeholders.

  Shadow Rapporteur Sophie Int’Veld MEP, ALDE Group

  Are there adequate procedures in the NSA for staff to signal wrongdoing?

  Unfortunately not. The culture within the US Intelligence Community is such that reporting serious concerns about the legality or propriety of programs is much more likely to result in your being flagged as a troublemaker than to result in substantive reform. We should remember that many of these programs were well known to be problematic to the legal offices of agencies such as the GCHQ and other oversight officials. According to their own documents, the priority of the overseers is not to assure strict compliance with the law and accountability for violations of law, but rather to avoid, and I quote, “damaging public debate,” to conceal the fact that for-profit companies have gone “well beyond” what is legally required of them, and to avoid legal review of questionable programs by open courts. . . .

  In my personal experience, repeatedly raising concerns about legal and policy matters with my co-workers and superiors resulted in two kinds of responses.

  The first were well-meaning but hushed warnings not to “rock the boat,” for fear of the sort of retaliation that befell former NSA whistleblowers like [former NSA officials] [J. Kirk] Wiebe, [William] Binney, and [Thomas] Drake. All three men reported their concerns through the official, approved process, and all three men were subject to armed raids by the FBI and threats of criminal sanction. Everyone in the Intelligence Community is aware of what happens to people who report concerns about unlawful but authorized operations.

  The second were similarly well-meaning but more pointed suggestions, typically from senior officials, that we should let the issue be someone else’s problem. Even among the most senior individuals to whom I reported my concerns, no one at NSA could ever recall an instance where an official complaint had resulted in an unlawful program being ended, but there was a unanimous desire to avoid being associated with such a complaint in any form.

  Do you feel you had exhausted all avenues before taking the decision to go public?

  Yes. I had reported these clearly problematic programs to more than ten distinct officials, none of whom took any action to address them. As an employee of a private company rather than a direct employee of the US government, I was not protected by US whistleblower laws, and I would not have been protected from retaliation and legal sanction for revealing classified information about lawbreaking in accordance with the recommended process.

  It is important to remember that this . . . legal dilemma did not occur by mistake. US whistleblower reform laws were passed as recently as 2012, with the US Whistleblower Protection Enhancement Act, but they specifically chose to exclude Intelligence Agencies from being covered by the statute [5 U.S.C. §2302(a)(2)(C) (ii)]. President Obama also reformed a key executive Whistleblower regulation with his [October] 2012 Presidential Policy Directive 19 [on Protecting Whistleblowers with Access to Classified Information], but it exempted Intelligence Community contractors such as myself. The result was that individuals like me were left with no proper channels.

  Do you think procedures for whistleblowing have been improved now?

  No. There has not yet been any substantive whistleblower reform in the US, and unfortunately my government has taken a number of disproportionate and persecutory actions against me. US government officials have declared me guilty of crimes in advance of any trial, they’ve called for me to be executed or assassinated in private and openly in the press, they revoked my passport and left me stranded in a foreign transit zone for six weeks, and even used NATO to ground the presidential plane of Evo Morales—the leader of Bolivia—on hearing that I might attempt to seek and enjoy asylum in Latin America.

  What is your relationship with the Russian and Chinese authorities, and what are the terms on which you were allowed to stay originally in Hong Kong and now in Russia?

  I have no relationship with either government.

  Shadow Rapporteur Jan Philipp Albrecht MEP, Greens Group

  Could we help you in any way, and do you seek asylum in the EU?

  If you want to help me, help me by helping everyone: declare that the indiscriminate, bulk collection of private data by governments is a violation of our rights and must end. What happens to me as a person is less important than what happens to our common rights.

  As for asylum, I do seek EU asylum, but I have yet to receive a positive response to the requests I sent to various EU member states. Parliamentarians in the national governments have told me that the US, and I quote, “will not allow” EU partners to offer political asylum to me, which is why the previous resolution on asylum ran into such mysterious opposition. I would welcome any offer of safe passage or permanent asylum, but I recognize that would require an act of extraordinary political courage.

  Can you confirm cyber-attacks by the NSA or other intelligence agencies on EU institutions, telecommunications providers such as Belgacom and SWIFT, or any other EU-based companies?

  Yes. . . . I can confirm that all documents reported thus far are authentic and unmodified, meaning the alleged operations against Belgacom, SWIFT, the EU as an institution, the United Nations, UNICEF, and others based on documents I provided have actually occurred. And I expect similar operations will be revealed in the future that affect many more ordinary citizens.

  Shadow Rapporteur Cornelia Ernst MEP, GUE Group

  In your view, how far can the surveillance measures you revealed be justified by national security and from your experience is the information being used for economic espionage? What could be done to resolve this?

  Surveillance against specific targets, for unquestionable reasons of national security while respecting human rights, is above reproach. Unfortunately, we’ve seen a growth in untargeted, extremely questionable surveillance for reasons entirely unrelated to national security. Most recently, the Prime Minister of Australia, caught red-handed engaging in the most blatant kind of economic espionage, sought to argue that the price of Indonesian shrimp and clove cigarettes was a “security matter.” These are indications of a growing disinterest among governments for ensuring intelligence activities are justified, proportionate, and above all accountable. We should be concerned about the precedent our actions set.

  The UK’s GCHQ is the prime example of this, due to what they refer to as a “light oversight regime,” which is a bureaucratic way of saying their spying activities are less restricted than is proper. . . . Since that light oversight regime was revealed, we have learned that the GCHQ is intercepting and storing unprecedented quantities of ordinary citizens’ communications on a constant basis, both within the EU and without. . . . There is no argument that could convince an open court that such activities were necessary and proportionate, and it is for this reason that such activities are shielded from the review of open courts.

  In the United States, we use a secret, rubber-stamp Foreign Intelligence Surveillance Court that only hears arguments from the government. Out of approximately 34,000 government requests over 33 years, the secret court rejected only 11. It should raise serious concerns for this committee, and for society, that the GCHQ’s lawyers consider themselves fortunate to avoid the kind of burdensome oversight regime that rejects 11 out of 34,000 requests. If that’s what heavy oversight looks like, what, pray tell, does the GCHQ’s “light oversight” look like?

  Let’s explore it. We learned only days ago that the GCHQ compromised a popular Yahoo service to collect images from web cameras inside citizens’ homes, and
around 10% of these images they take from within people’s homes involve nudity or intimate activities. . . . In the same report, journalists revealed that this sort of webcam data was searchable via the NSA’s XKEYSCORE system, which means the GCHQ’s “light oversight regime” was used not only to capture bulk data that is clearly of limited intelligence value and most probably violates EU laws, but to then trade that data with foreign services without the knowledge or consent of any country’s voting public.

  We also learned last year that some of the partners with which the GCHQ was sharing this information, in this example the NSA, had made efforts to use evidence of religious conservatives’ association with sexually explicit material of the sort GCHQ was collecting as a grounds for destroying their reputations and discrediting them. . . . The “Release to Five Eyes” classification of this particular report, dated 2012, reveals that the UK government was aware of the NSA’s intent to use sexually explicit material in this manner, indicating a deepening and increasingly aggressive partnership. None of these religious conservatives were suspected of involvement in terrorist plots: they were targeted on the basis of their political beliefs and activism, as part of a class the NSA refers to as “radicalizers.”

  I wonder if any members of this committee have ever advocated a position that the NSA, GCHQ, or even the intelligence services of an EU member state might attempt to construe as “radical”? If you were targeted on the basis of your political beliefs, would you know? If they sought to discredit you on the basis of your private communications, could you discover the culprit and prove it was them? What would be your recourse?

  And you are parliamentarians. Try to imagine the impact of such activities against ordinary citizens without power, privilege, or resources. Are these activities necessary, proportionate, and an unquestionable matter of national security?

  A few weeks ago we learned the GCHQ has hired scientists to study how to create divisions amongst activists and disfavored political groups, how they attempt to discredit and destroy private businesses, and how they knowingly plant false information to misdirect civil discourse. . . .

  To directly answer your question, yes, global surveillance capabilities are being used on a daily basis for the purpose of economic espionage. That a major goal of the US Intelligence Community is to produce economic intelligence is the worst kept secret in Washington.

  In September, we learned the NSA had successfully targeted and compromised the world’s major financial transaction facilitators, such as Visa and SWIFT, which released documents describe as providing “rich personal information,” even data that “is not about our targets.” . . . Again, these documents are authentic and unmodified—a fact the NSA itself has never once disputed.

  In August, we learned the NSA had targeted Petrobras, an energy company. . . . It would be the first of a long list of US energy targets.

  But we should be clear these activities are not unique to the NSA or GCHQ. Australia’s DSD targeted Sri Mulyani Indrawati, a finance minister and Managing Director of the World Bank. . . . Report after report has revealed targeting of G-8 and G-20 summits. Mass surveillance capabilities have even been used against a climate change summit.

  Recently, governments have shifted their talking points from claiming they only use mass surveillance for “national security” purposes to the more nebulous “valid foreign intelligence purposes.” I suggest this committee consider that this rhetorical shift is a tacit acknowledgment by governments that they recognize they have crossed beyond the boundaries of justifiable activities. Every country believes its “foreign intelligence purposes” are “valid,” but that does not make it so. If we are prepared to condemn the economic spying of our competitors, we must be prepared to do the same of our allies. Lasting peace is founded upon fundamental fairness.

  The international community must agree to common standards of behavior, and jointly invest in the development of new technical standards to defend against mass surveillance. We rely on common systems, and the French will not be safe from mass surveillance until Americans, Argentines, and Chinese are as well.

  The good news is that there are solutions. The weakness of mass surveillance is that it can very easily be made much more expensive through changes in technical standards: pervasive, end-to-end encryption can quickly make indiscriminate surveillance impossible on a cost-effective basis. The result is that governments are likely to fall back to traditional, targeted surveillance founded upon an individualized suspicion. Governments cannot risk the discovery of their exploits by simply throwing attacks at every “endpoint,” or computer processor on the end of a network connection, in the world. Mass surveillance, passive surveillance, relies upon unencrypted or weakly encrypted communications at the global network level.

  If there had been better independent and public oversight over the intelligence agencies, do you think this could have prevented this kind of mass surveillance? What conditions would need to be fulfilled, both nationally and internationally?

  Yes, better oversight could have prevented the mistakes that brought us to this point, as could an understanding that defense is always more important than offense when it comes to matters of national intelligence. The intentional weakening of the common security standards upon which we all rely is an action taken against the public good.

  The oversight of intelligence agencies should always be performed by opposition parties, as under the democratic model, they always have the most to lose under a surveillance state. Additionally, we need better whistleblower protections, and a new commitment to the importance of international asylum. These are important safeguards that protect our collective human rights when the laws of national governments have failed.

  European governments, which have traditionally been champions of human rights, should not be intimidated out of standing for the right of asylum against political charges, of which espionage has always been the traditional example. Journalism is not a crime, it is the foundation of free and informed societies, and no nation should look to others to bear the burden of defending its rights.

  Shadow Rapporteur Axel Voss MEP, EPP Group

  Why did you choose to go public with your information?

  Secret laws and secret courts cannot authorize unconstitutional activities by fiat, nor can classification be used to shield an unjustified and embarrassing violation of human rights from democratic accountability. If the mass surveillance of an innocent public is to occur, it should be authorized as the result of an informed debate with the consent of the public, under a framework of laws that the government invites civil society to challenge in open courts.

  That our governments are even today unwilling to allow independent review of the secret policies enabling mass surveillance of innocents underlines governments’ lack of faith that these programs are lawful, and this provides stronger testimony in favor of the rightfulness of my actions than any words I might write. . . .

  Are you aware that your revelations have the potential to put at risk lives of innocents and hamper efforts in the global fight against terrorism?

  Actually, no specific evidence has ever been offered, by any government, that even a single life has been put at risk by the award-winning journalism this question attempts to implicate.

  The ongoing revelations about unlawful and improper surveillance are the product of a partnership between the world’s leading journalistic outfits and national governments, and if you can show one of the governments consulted on these stories chose not to impede demonstrably fatal information from being published, I invite you to do so. The front page of every newspaper in the world stands open to you.

  Did the Russian secret service approach you?

  Of course. Even the secret service of Andorra would have approached me, if they had had the chance: that’s their job.

  But I didn’t take any documents with me from Hong Kong, and . . . it doesn’t take long for an intelligence service to realize when they’re out of luck. I was also acc
ompanied at all times by an utterly fearless journalist with one of the biggest megaphones in the world, which is the equivalent of Kryptonite for spies. As a consequence, we spent the next 40 days trapped in an airport instead of sleeping on piles of money while waiting for the next parade. But we walked out with heads held high.

  I would also add, for the record, that the United States government has repeatedly acknowledged that there is no evidence at all of any relationship between myself and the Russian intelligence service.

  . . .

  Shadow Rapporteur Timothy Kirkhope MEP, ECR Group

  You have stated previously that you want the intelligence agencies to be more accountable to citizens, however, why do you feel this accountability does not apply to you? Do you therefore, plan to return to the United States or Europe to face criminal charges and answer questions in an official capacity, and pursue the route as an official whistle-blower?

  Respectfully, I remind you that accountability cannot exist without the due process of law, and . . . the well-known gap in US law . . . deprived me of vital legal protections due to nothing more meaningful than my status as an employee of a private company rather than of the government directly. . . . Surely no one on the committee believes that the measure of one’s political rights should be determined by their employer.

  Fortunately, we live in a global, interconnected world where, when national laws fail like this, our international laws provide for another level of accountability, and the asylum process provides a means of due process for individuals who might otherwise be wrongly deprived of it. In the face of the extraordinary campaign of persecution brought against me by . . . the United States government on account of my political beliefs, . . . an increasing number of national governments have agreed that a grant of political asylum is lawful and appropriate.