June 12, 2013, 8:00 AM —
Source: REUTERS/Bobby Yip
The case of NSA leaker Edward Snowden has taken more twists and turns than a John Le Carré novel this week.
Snowden, as you probably know, is the former NSA contractor and U.S. intelligence expert (and now former Booze Allen Hamilton contractor) who leaked classified information to the press, including a Powerpoint presentation describing an NSA surveillance program dubbed "PRISM."
Shortly after stories based on that presentation appeared in The Guardian and The Washington Post, Snowden disappeared from the hotel where he had been staying in Hong Kong. His current whereabouts are unknown, though the Russian government has stepped up to say that it may be willing to offer Snowden asylum. Le Carré could hardly have imagined it better!
In the intervening days, however, a string of stories and editorials claim that Snowden had his facts wrong, accuse him of treason – or both. Others have accused journalists like Glen Greenwald of The Guardian of rushing to print before they had all the facts.
All of these criticisms could be valid. Technology firms may not have given intelligence agencies unfettered and unchecked access to their users' data. Edward Snowden may be, as the New York Times's David Brooks suggests, one of those 20-something-men leading a "life unshaped by the mediating institutions of civil society." I say it again: all may be true without undermining the larger truth of Snowden's revelation, which is that – in this age of global, networked communications and interactions – we are all a lot less free than we thought we were.
I say this because nobody has seriously challenged the basic truth of Snowden's leak: that many of the world's leading telecommunications and technology firms are regularly divulging information about their users' activities and communications to law enforcement and intelligence agencies based on warrantless requests and court reviews that are hidden from public scrutiny.
Statements from the likes of Facebook CEO Mark Zuckerberg and Google CEO Larry Page have confirmed this. Both strongly contested the allegations of "back doors" and unfettered access to their systems, while affirming the regular provision of user data to governments in "accordance with the law." In the U.S., that law is often The USA PATRIOT ACT and the Foreign Intelligence Surveillance Act (FISA).
This isn't new information. Many of us have known – or expected – that government surveillance post 9/11 was broad. But, as Tenable CEO Ron Gula – himself, a former NSA employee – said: believing it and the details of the program broken into Powerpoint bullet points are two different things.
Let's remember: the Internet isn't the first revolutionary communications technology to come along in human history. In just the last 100 years, there have been many: our modern postal service, and the telephone among them. Thoughtful legislators in those eras saw fit to make accommodations for those new "conveniences" that also comported with the values enshrined in our Constitution and Bill of Rights.
In a 1877 U.S. Supreme Court decision, weighing the government's ability to inspect the content of letters sent via the postal service, found that "No law of Congress can place in the hands of officials connected with the postal service any authority to invade the secrecy of letters and such sealed packages in the mail; and all regulations adopted as to mail matter of this kind must be in subordination to the great principle embodied in the fourth amendment of the Constitution."
That's why all of us understand that exercising the convenience of dropping a letter in the corner post office box doesn't mean that we also consent to the government ripping open that letter and read its contents. Similarly, we all expect that we can pick up the phone and call anybody with the confidence that a law enforcement officer won't be listening in on that phone conversation - at least without the approval of a judge.
Sadly, we've been steadily conditioned to think differently about our electronic communications. We've been asked by both private sector firms and our government to accept that there must be some bargain – a tradeoff between privacy and convenience. Use Gmail – just be prepared to have your correspondence sucked up into the NSA's new data center in Utah.
Previous generations didn't see such bargains as inevitable. And, as recently as 1986, U.S. lawmakers thought to give electronic communications the same level of protection. Slowly, however, those protections have been whittled away, as compute power and data have migrated to the cloud, and to location aware mobile devices. As the Center for Democracy and Technology has pointed out, the Electronic Communications Privacy Act, is now in dire need of an update. Sadly, the momentum seems to be going the other way.
Maybe what Mr. Snowden in his youthful naiveté has helped to expose, then, is our own passivity and, therefore, our complicity with what is, in truth, a massive surrender of our Constitutionally guaranteed civil liberties. Maybe the shock of it will prompt much needed changes to strengthen privacy protections and limit the kinds of surveillance of citizens that the government is allowed to conduct. If that happens, we'll all owe Mr. Snowden a debt of gratitude.