Snowden and the Fight for American Privacy

Edward Snowden did heroic service in awakening Americans to Washington ravishing their privacy. Snowden’s “reward” is to be banished in Russia without a snowball’s chance in hell of a fair trial if he returns to America. But as he courageously declared, “I would rather be without a state than without a voice.” He explained why he leaked classified information: “I can’t in good conscience allow the U.S. government to destroy privacy, internet freedom and basic liberties for people around the world with this massive surveillance machine they’re secretly building.”

To recognize Snowden’s contribution to liberty, it helps to review the political and legal landscape before his revelations. In 2008, Sen. Barack Obama’s denunciations of the Bush administration’s warrantless wiretaps secured his image as a champion of civil liberties. Campaigning for president, Obama pledged “no more illegal wiretapping of American citizens…. No more ignoring the law when it is inconvenient.” Unfortunately, Obama didn’t promise not to ignore the law when it was “really, really convenient.”

Barack Obama: American spy-in-chief

After Obama clinched the Democratic Party presidential nomination, he reversed himself and voted for granting immunity to telecom companies that betrayed their customers to Uncle Sam. This was a bellwether for Obama’s future constitutional depredations. After Obama took office, his appointees speedily expanded National Security Agency seizures of Americans’ personal data. The Washington Post characterized Obama’s first term as “a period of exponential growth for the NSA’s domestic collection.” 

The acid drip of revelations of illicit surveillance that began after 9/11 continued regardless of Obama’s “Hope and Change” mantra. Shortly after Obama’s inauguration, former NSA analyst Russell Tice declared that the NSA was monitoring “all Americans’ communications. Faxes, phone calls and their computer communications.” Tice also revealed that the NSA had targeted journalists and news agencies for wiretaps. Tice’s revelations failed to hold the media’s attention.

In June 2009, the NSA admitted that it had accidentally collected the personal information of vast numbers of Americans. The New York Times reported that “the number of individual communications that were improperly collected could number in the millions.” But it wasn’t a crime; it was merely inadvertent “overcollection” of Americans’ personal data which NSA would retain for (at least) five years. 

In 2010, the Washington Post reported that “every day, collection systems at the [NSA] intercept and store 1.7 billion emails, phone calls and other type of communications.” In 2011, NSA expanded a program to provide real-time location information of every American with a cell phone, acquiring more than a billion cell phone records each day from AT&T. Regardless, the media continued portraying Obama as a civil liberties savior. 

Obama perpetuated perverse Bush-era legal doctrines to totally shield federal surveillance from judicial scrutiny. After the Supreme Court accepted a case on warrantless wiretaps in 2012, the Obama administration urged the justices to dismiss the case. A New York Times editorial labeled the administration’s position “a particularly cynical Catch-22: Because the wiretaps are secret and no one can say for certain that their calls have been or will be monitored, no one has standing to bring suit over the surveillance.”

The Supreme Court endorsed surveillance

Cynical arguments sufficed for five justices. Justice Samuel Alito, writing for the majority, declared that the court was averse to granting standing to challenge the government based on “theories that require guesswork” and “no specific facts” proving federal targeting, based on fears of “hypothetical future harm.” The Supreme Court insisted that the government already offered plenty of safeguards — such as the Foreign Intelligence Surveillance Act (FISA) Court — to protect Americans’ rights. Law professor Stephen Vladeck commented on the decision: “The coffin is slamming shut on the ability of private citizens and civil liberties groups to challenge government counterterrorism policies.”

Three months later, newspapers around the world began publishing confidential documents leaked by Snowden. Americans learned that the NSA can tap almost any cell phone in the world, exploit computer games like Angry Birds to poach personal data, access anyone’s email and web browsing history, remotely penetrate almost all computers, and crack the vast majority of computer encryption. The NSA used Facebook and Google apps to send malware to targeted individuals. NSA filched almost 200,000,000 records a month from private computer cloud accounts. Obama’s Justice Department secretly decreed that all phone records of all Americans were “relevant” to terrorism investigations and that the NSA could therefore justifiably seize everyone’s personal data.

Snowden exposed the surveillance state

Snowden revealed how the NSA had covertly carried out “the most significant change in the history of American espionage from the targeted surveillance of individuals to the mass surveillance of entire populations.” The NSA created a “repository capable of taking in 20 billion ‘record events’ daily and making them available to NSA analysts within 60 minutes.” The NSA is able to snare and stockpile a billion times more information than did East Germany’s Stasi secret police, one of the most odious agencies of the post-war era. Snowden later commented, “Suspicionless surveillance does not become okay simply because it’s only victimizing 95 percent of the world instead of 100 percent.”

Seeking to defuse the controversy, Obama justified NSA surveillance as simply “a tradeoff we make…. To say there’s a tradeoff doesn’t mean somehow that we’ve abandoned freedom. I don’t think anybody says we’re no longer free because we have checkpoints at airports.” 

On Capitol Hill, the response to Snowden’s disclosures ranged from vacuous to devious. House Speaker John Boehner declared, “When you look at these programs, there are clear safeguards. There’s no American who’s going to be snooped on in any way, unless they’re in contact with some terrorists somewhere around the world.” Other congressional leaders quickly denounced Snowden as a “traitor.” House Intelligence Committee chairman Mike Rogers (R-Mich.) and former NSA chief Michael Hayden publicly joked about putting Snowden on a government kill list. Rogers won the “D.C. Knucklehead of the Week” Prize when he defended illicit surveillance: “You can’t have your privacy violated if you don’t know your privacy is violated.” 

Regardless of Snowden’s proof, Obama administration appointees and spokesmen insisted that NSA only targeted individuals linked to terrorism, but NSA’s definition of terrorist suspect was ludicrously broad, including “someone searching the web for suspicious stuff.” If someone used encryption for their emails, that alone justified wiretapping them. Snowden commented in 2014: “If I had wanted to pull a copy of a judge’s or a senator’s e-mail, all I had to do was enter that selector into XKEYSCORE,” an NSA program that required no warrant from FISA or any other court. 

President Obama sought to quash the controversy by boldly proclaiming: “There is no spying on Americans.” The New York Times headlined its report on Obama’s PR effort: “President Moves to Ease Worries on Surveillance; Talks of New Openness.” Talk was cheap. 

The Washington Post analyzed a cache of 160,000 secret email conversations/threads (provided by Snowden) that the NSA intercepted and found that nine out of ten account holders were not the “intended surveillance targets but were caught in a net the agency had cast for somebody else.” Almost half of the individuals whose personal data was inadvertently commandeered were U.S. citizens. The files “tell stories of love and heartbreak, illicit sexual liaisons, mental-health crises, political and religious conversions, financial anxieties and disappointed hopes,” the Post noted. If an American citizen wrote an email in a foreign language, NSA analysts assumed they were foreigners who could be surveilled without a warrant. 

FISA court rulings “created a secret body of law giving the National Security Agency the power to amass vast collections of data on Americans,” the New York Times reported in 2013. The classified rulings (leaked by Snowden) showed that FISA judges rubber-stamped massive seizures of Americans’ personal data that flagrantly contradicted Supreme Court rulings on the Fourth Amendment. The Times noted that the FISA court had “become almost a parallel Supreme Court, serving as the ultimate arbiter on surveillance issues” — and almost always giving federal agencies all the power they sought. The vast majority of members of Congress were unaware that a secret court had secretly nullified much of the Bill of Rights. That did not deter Obama from proclaiming that the FISA court was “transparent” — though only the White House could see. 

Snowden’s revelations outraged some judges. In December 2013, Federal judge Richard Leon issued a ruling denouncing the NSA surveillance regime as “almost Orwellian”: “I cannot imagine a more indiscriminate and arbitrary invasion than this systematic and high-tech collection and retention of personal data on virtually every single citizen for purposes of querying and analyzing it without prior judicial approval.” 

Obama sought to defuse the controversy by selecting an expert panel that he expected to vindicate his surveillance. But the panel reported that there was not a single case where the telephone data roundup had been necessary to stop a terrorist attack. The panel’s report also warned: “Americans must never make the mistake of wholly trusting our public officials.” The panel concluded that the “bulk collection of American citizens’ phone records served little useful purpose in combatting terrorism,” ABC News reported. Panel member Richard Clarke commented, “There are very few pieces of data that have been collected in this program that have been useful.” But as Snowden observed, “These programs were never about terrorism: they’re about economic spying, social control, and diplomatic manipulation. They’re about power.” 

The Obama administration made few substantive changes in response to Snowden’s exposure of sweeping criminality. Author and NSA expert James Bamford observed shortly before the 2016 election, “Over his two terms, Obama has created the most powerful surveillance state the world has ever seen.” Despite the uproars over Snowden’s revelations, neither Congress nor federal courts fundamentally pulled in the reins on the Surveillance State. 

 Snowden observed, “The consent of the governed is not consent if it is not informed.” Any such consent to Washington has become increasingly a mirage. The pervasive secrecy that has proliferated in post-9/11 America has made it far more difficult for citizens to leash their rulers. Regardless of the health of U.S. democracy, Snowden’s warnings on the “architecture of oppression” are more relevant than ever. 

Another Snowden lesson for our democracy is the futility of passive obedience. Vast numbers of Americans presume they will be safe from government wrongdoing or other federal debacles if they simply keep their head down and don’t complain. By blighting resistance to government, however, surveillance unleashes rulers to do far more mischief. If politicians drag this nation into a major war, keeping your mouth shut won’t protect you against incoming missiles. 

Citizens cannot acquiesce to illegal government surveillance without forfeiting their right to any remaining privacy. There is no reason for people to trust secretive federal programs more than Washington trusts American citizens. The biggest delusion is that Americans will be more secure after the feds further decimate their privacy.

This article was originally published in the May 2023 edition of Future of Freedom.

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