We owe a lot to Edward Snowden. He’s accomplished what the US Congress could not do and what that country's federal courts have so far refused to do.
A former Central Intelligence Agency computer technician, Snowden exposed large-scale surveillance efforts in the United States and worldwide.
Far from committing an act of treason, as several top US lawmakers have suggested, by all appearances he's done a public service.
Thanks to him, we now know about the secret court order compelling the telecommunications company Verizon to disclose to the National Security Agency (NSA), on an “ongoing daily basis”, information on all telephone calls it handles.
We also now know about the secret NSA program Prism, which allows direct access to information in the servers of Microsoft, Yahoo, Google, Facebook, YouTube, Skype and Apple. And we know more about the ways the NSA is able, through its “Boundless Informant” initiative, to collate the information it mines from these efforts.
These disclosures reveal two trends in the United States’ approach to intelligence — starting with the Bush administration and, we now know, continued and augmented on President Obama’s watch.
First, when given the option of broad surveillance powers at home and abroad, US intelligence agencies have taken that option and pushed it as far as possible.
Why be constrained by the quaint concepts of following individual leads and demonstrating probable cause when they can instead sift through millions of telephone logs and plug directly into the servers of the email and social networking platforms that almost everybody uses?
This approach is hardly surprising, for any number of reasons. Surely one significant incentive to adopt it is that the courts have held that disclosure of call logs, even in their entirety, need not meet the usual requirements for a warrant.
It is true that obtaining “telephony metadata” — records of calls placed from one phone to another — isn’t quite the same as eavesdropping on individual communications. But the courts appear not to appreciate just how much can be gleaned from such data.
An analysis of call logs can produce a scarily accurate picture of who associates with whom (and at what level of intimacy), how they spend their free time, what health conditions they may have, what their political views are likely to be, and other details of their private lives.
Second, obvious for some time, is the trend of state secrecy gone mad.
The sweeping collection of phone “metadata” was made possible by amendments in 2008 to the Foreign Intelligence Surveillance Act (FISA) which exempt such surveillance from any meaningful oversight. Under the amendments, the government has no obligation to reveal whose communications it intends to monitor, and the FISA court has no role in reviewing how the government is actually using the information it gathers.
Most remarkably, even if the court finds the government’s procedures deficient, the government can disregard those findings and continue surveillance while it appeals the court’s decision.
The American Civil Liberties Union challenged the law’s constitutionality on behalf of Amnesty International, human rights lawyers, and other organisations. Dismissing the case last year, the US Supreme Court said that Amnesty International and the other groups couldn’t show that we were likely to be subject to surveillance. And how could we? Surveillance and the court orders that authorise it are secret.
Obama said last week that Congressional oversight is the best guarantee that Americans aren’t being spied on. As for the rest of the world, well, we’ve been on notice for some time that we’re fair game.
In the absence, for the moment, of any formal charges, the United Kingdom has already told airlines to deny Snowden boarding on any flight to any country, lest he seek to travel to or through London in an effort to seek asylum outside Hong Kong.
US prosecutors are said to have identified dozens of possible charges that are also crimes in Hong Kong, a requirement of securing extradition.
It would be a miscarriage of justice if Snowden isn’t allowed to put forward a public interest defence to any charges he eventually faces. His stated motive was to inform the public of what the US is doing in their name. He’s said that he reviewed the documents prior to disclosure in order to ensure that he didn’t put anybody at risk.
There’s no question that the programs he exposed are actually matters of public interest.