How Loudly the Whistles Must Blow: The National Security Agency, Government Spying, and the Person Trying to Change it All

Jul 17, 2013 - by Avi McClelland-Cohen - 0 Comments

Updated August 3, 2013

Edward Snowden

Edward Snowden’s status as hero or traitor is of far less import than the awareness his whistle blowing has brought to just how pervasive and extensive the U.S. government’s spying on its own citizens and allies has become.

by Avi McClelland-Cohen

Update: Russia granted Edward Snowden temporary asylum on August 1, 2013. Details below.  

“We dare not forget today that we are the heirs of that first revolution." –John F. Kennedy

"In a time of universal deceit, telling the truth is a revolutionary act."  -- George Orwell

Having escaped the grasps of a hungry empire, the Founding Fathers and Mothers of the United States knew well about government overreach, and took care to include numerous protections in the Constitution: freedom of speech, freedom from self-incrimination, the right to peaceably assemble, and more. The Fourth Amendment in particular enshrines enumerated rights to be free from government abuse of search and seizure: “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.” For over a century, this Amendment protected Americans from warrantless searches and surveillance, including of the mail they sent via post and the thoughts they logged in their personal communiqués.

The national security era opened with the creation of the National Security Agency (NSA) in 1952. NSA is responsible for code making, code breaking, and, of course, intelligence services for the Department of Defense, CIA, and other members of the U.S. intelligence community. The budget would grow to undisclosed billions over the next decades. In the 1980s, privatization began the expansion of private contractors and non-governmental employees working for the defense industry. Communication technology became more sophisticated, the mission of the NSA more complex and oversight more difficult.  Following September 11, 2001 and passage of the PatriotAct, NSA’s Orwellian mission solidified.

The Foreign Intelligence Surveillance Act (FISA) was passed by Congress in the late 1970s to ensure effective Congressional oversight of foreign intelligence agencies. The FISA Act, however, paradoxically expanded the powers to the Executive branch.  For example, the President could now authorize electronic surveillance without a warrant for a period of up to a year, providing there was no “substantial likelihood” that U.S. persons would be affected.

The most public impact of the FIAS Act was to create the Foreign Intelligence Surveillance Court to oversee requests by federal police personnel for warrants related to foreign intelligence. To not compromise the methods and targets of the intelligence services, the FISA court would operate in secrecy.  Though the Chief Justice of the United States appoints the eleven judges to the FISA court, it has never come under the scrutiny of the Supreme Court itself, and the constitutionality of the court remains in precarious legal limbo. Unlike other courts (though similar to a grand jury system), the FISA court hears arguments only from the government’s side, and its rulings—almost always in the government’s favor—are also strictly secret.

The rise of the Internet has been a game changer in many respects. Suddenly, information is open and available to anyone with a web connection.  Conversely, thoughts and communications are now routinely (and carelessly) shared online.  Communications that were once sacrosanct, including phone calls and written mail, were opened to intercept as the court’s oversight has not kept up with these changes. Government intrusion, largely unchallenged, resulted in a treasure trove of knowledge and data.

Because of this, the rise of the Internet led many to question how this new power would be harnessed. Wasn’t it vulnerable to abuse? In short, when the Internet Age dawned Americans were already privy to prior abuses of power. The majority of them, however, did not expect the massive, all-encompassing surveillance programs that solidified in the early years of the new millennium.

However, the game may have changed once more. Edward Snowden, a 29-year-old intelligence analyst, gave up his comfortable home on Hawaii, left the physical borders of the United States, and rocketed to infamy as the most famous whistleblower in American history. Snowden had been employed by Booz Allen Hamilton, a technology consulting firm, contracting with NSA. During the course of his work, Snowden gathered a stockpile of information on government surveillance programs.  With the assistance of The Guardian of London,a few valiant journalists and, of course, the awesome power of the Internet, Snowden has begun to release this information to the public. He is bolstered heavily by non-profit organizations ranging from the American Civil Liberties Union to hacker-collective Wikileaks, the latter of which is pulling no punches in its assistance of Snowden, reportedly assisting in travel arrangements and providing legal counsel.[1]

PRISM

Similar to a prism, PRISM splits Internet traffic, routing the entire stream into at least two channels, the legitimate and the NSA channel.  Thanks to Snowden’s revelations, it is now public knowledge that NSA has direct access to the systems of the most popular Internet-based companies – including, but not limited to, Apple, Microsoft, Facebook, Twitter, and Google, names which have become synonymous with modern Internet use. This allows NSA to collect troves of data on millions of U.S. citizens – including metadata from virtually every online interaction (“metadata” records information such as the time stamp, who was involved, and locations of participants). But PRISM goes even further. Authorized by the FISA Court and renewed every 90 days (at least through 2011), the PRISM program allowed NSA officials to access information far beyond metadata, including search histories, email content, chat logs, and video.

This surveillance program includes all communications between persons outside the U.S., communications involving at least one person outside the U.S., and extends to some communications entirely within the U.S. without individual warrants or judicial review. This is in clear violation of the Fourth Amendment’s “search and seizure” provision requiring a specific warrant for the government to intrude.

Many Internet providers claim no knowledge of the program. This is plausible – the FISA Amendments Act (renewed in 2012) stipulates that Internet providers need not be informed – let alone consent – to these searches.

It is also possible the companies are lying. For example, Microsoft, one of the largest tech companies in the world, not only was aware of NSA’s action but actually cooperated with the agency at seemingly every turn. The supreme irony, of course, is that Microsoft’s most recent marketing campaign touts the tagline “Your privacy is our priority.”

Adding insult to injury, according to slides used to train NSA officials in the PRISM program and released by Snowden, the PRISM spying program costs American taxpayers $20 million annually. United States citizens are paying the government to spy on them.

Other Programs/NSA Expansion

Although PRISM may have been discontinued in 2011, other spy operations remain intact, in spite of assurances in 2008 that the “War on Terror” would be toned down – at least in regard to civil liberties abuses. Despite the outcome of that year’s election, documents made public by Snowden reveal now that any change that came as a result of Obama’s election was not reflected in NSA policies – in fact, government spying on citizens has clearly continued well into Obama’s tenure as President with, among other programs, the mass gathering of information from cell phone and tech giant Verizon. Snowden released a FISA Court order requiring Verizon to furnish NSA with copies of "all call detail records or 'telephone metadata' created by Verizon for communications between the United States and abroad" or "wholly within the United States, including local telephone calls." No specific persons were listed, nor were reasons provided why the entire customer base of one of the largest cell phone carriers in the country should be suspected of terrorist activities.

Another program, codenamed “Evil Olive,” allows NSA to direct over half of all Internet traffic (some reports suggest as much as 75 percent) through its servers for review. This program has recently celebrated its one-trillionth record processed (yes, that’s trillion with 12 zeroes).

These are not the only programs that Snowden’s whistle blowing has revealed, and more are being uncovered. The FISA Court, again secretly, has ruled that the Fourth Amendment does not apply when terrorism may be afoot. Invoking the “special needs” doctrine, which holds that in certain instances minor intrusion on private lives may be justified for the pressing need for public safety (this began as a justification for drug testing railroad workers), these classified decisions have undermined centuries of jurisprudence – not to mention the social contract of the United States’ founding: consent of the governed.

Downfall of Diplomacy

In addition to the massive expansion of these spying programs on individual persons, documents leaked by Snowden have revealed spying on foreign countries. Most (if not all) Latin American governments have been targeted, and even European nations – some of the U.S.’s closest allies – did not escape the massive spying game, including bugs placed in European Union buildings. Certainly, espionage is still common among modern governments, but the revelations do not bode well for United States diplomatic endeavors, particularly combined with the fact that foreign nationals’ online data receives no protections whatsoever under NSA programs.

Where in the World is America’s Whistleblower?

As more documents are released and diplomatic favors called in, Edward Snowden’s fate hangs in the balance. At the time of this writing, Snowden’s whereabouts and state of personal freedom are murky, though new developments take place every day.   As far as reporters know, Snowden left his safe house in Hong Kong on June 23, where he spent the days of the initial publications, to travel to Moscow, ultimate destination unknown. He checked in for a flight from Moscow to Cuba, but never boarded the flight and never left Moscow’s International Airport. On July 12, Snowden and representatives from several human rights groups held a conference in the airport, causing a flare-up of tensions between former Cold War enemies. Russian President Vladimir Putin commented that the United States has effectively trapped the whistleblower in the terminal, and he seems unwilling to cooperate with the United States in returning Snowden to America. Putin would not, however, answer whether or not his own nation would offer Snowden asylum.

On July 16, Snowden formally requested temporary – not political – asylum in Russia. This tactic appears designed to take the pressure off President Putin to intervene in the matter, a fact readily acknowledged by a spokesperson for Putin who told Russian news agencies, “If we are talking about temporary asylum, this is an issue not for the president but for the Federal Migration Service.” If the Migration Service grants Snowden temporary asylum, the fugitive will be allowed to live and work in Russia for one year, with the possibility of an extension after that.

In his application for temporary asylum, Snowden stated he feared being tortured or sentence to death if he we were extradited to the United States. U.S. Attorney General Eric Holder responded that if Snowden were extradicted to the United States, he would not be subjected to torture or face the death penalty.

Certain countries with historically rocky relationships with the U.S., such as Ecuador, Venezuela, and Bolivia, have recently offered Snowden safe haven. Snowden told the Guardian that he does not expect to ever return home, where he left his girlfriend and his life; instead, he hopes for asylum in a nation such as Iceland, which has a strong history of legal protections for free speech, or one of the aforementioned Latin American countries which have accepted his applications for asylum.

Allies of the United States seem intent on returning Snowden to the U.S. to face prosecution under the Espionage Act, life imprisonment, and potentially the death penalty. For example, when rumors spread that Snowden might be aboard the private jet of Bolivia’s President Evo Morales, the plane was diverted from its course by European nations who controlled the air space and forced to land. (Once it was apparent that Snowden was not on board, the plane was allowed to resume flight.) The United States, including Vice President Biden in particular, has lobbied numerous other countries not to grant asylum to Snowden. However, in the eyes of the international legal community, interference by the United States only makes Snowden’s case for asylum stronger.

This leaves Edward Snowden a man without a state – a violation of the human rights Americans hold dear. His life has taken on the eerie hue of an espionage thriller, but instead of the silver screen, this tale is unfolding in stark reality – and the ending is not yet written.

Much to the consternation of President Obama, Russia granted Snowden temporary asylum on August 1, allowing him to leave the Moscow airport transit zone at 3:30 p.m., accompanied by his Russian attorney, Anatoly G. Kucherena, and Sarah Harrison of WikiLeaks. Prior to leaving the airport, Kucherena handed Sowden a passport-like document that grants Snowden temporary refugee status in Russian until July 31, 2014. The Russian government would not disclose where Snowden will take up residence. Harrison, who accompanied Snowden from Hong Kong on June 23, remained with him throughout his five-week stay at the airport.

As for Snowden's next move, Kucherena said his client was mulling his options and was quite aware the legal issues facing him were far from over. The attorney said Snowden had agreed informally to the condition President Putin had set on his gaining asylum in Russia when he said in July, "If he wants to stay here, there is one condition: he must stop his work aimed at inflicting damage on our American partners, strange as it sounds from my lips."

The New York Times quoted a senior Russian lawmaker, Igor N. Morozov, as saying on August 2 that he could not rule out the possibility of Snowden leaving Russian territory before the end of August. Previously, Snowden had indicated an interest in gaining asylum in Iceland and three Latin American countries.

The Anti-Whistle Blower Campaign

President Obama is attempting to write an end to government whistleblowers in the wake of Bradley Manning and Edward Snowden’s massive leaks. Having prosecuted more whistleblowers than any prior administration, Obama is now cracking down by turning government employees on each other, creating a workplace fraught with suspicion.

As governments weigh in on the situation, they should remember that the whole world is watching – watching ardently as two stories unfold: first, the biography of whistleblower Edward Snowden, second, the saga of an empire.

What’s Next?

In early July, less than a month after young Snowden’s whistle was first heard round the world, his father published an open letter to his son in which he likened the young man to Thomas Paine, the hero of the American Revolution. The letter, written with the assistance of counsel, read, in part: “Irrespective of life's vicissitudes, we will be unflagging in efforts to educate the American people about the impending ruination of the Constitution and the rule of law unless they abandon their complacency or indifference. Your actions are making our challenge easier.” (The full letter can be viewed here: http://www.guardian.co.uk/world/2013/jul/02/edward-snowden-father-open-letter.)

Ultimately, Edward Snowden’s role is that of a catalyst; it is not his actions but our response as a nation that will create reform, or fail to.  Recent polls show that over half of Americans want more oversight of the intelligence community and do not believe Congress provides a sufficient check to that community’s enormous, secret power. On Independence Day, July 4, thousands rallied across the country to “Restore the Fourth [Amendment],” and the Internet community joined in solidarity.

Edward Snowden’s status as hero or traitor is of far less import than the impetus he is providing for reflection on the role of government and for change. Regardless of his means or motives, Americans have been awakened to the all-encompassing spy programs watching over them. Will Americans demand reform and oversight when casting their ballots in upcoming elections? Will representatives in Congress hear the demands for a restoration of the Fourth Amendment right of the people “to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures”? Or will we stand by as unelected functionaries expand their technology and oversight of all Americans? After years of unchecked growth of the Executive branch, does Congress have the power to change this – can this American democracy be salvaged, or has absolute power corrupted it absolutely, creating a criminal empire beyond salvation?

Americans can weigh in on these issues to their Congressional Representatives by calling the Capitol switchboard at (202) 224-3121. If you don’t know who your representative is, you can find out by entering your zip code here: http://www.house.gov/representatives/find/.

Many of the documents associated with this story are now available to the public online and the story will continue to unfold. The Guardian has a broad archive available to the public at http://www.guardian.co.uk/world/the-nsa-files.

 

Helpful Resources

Directory of all related articles:

http://www.guardian.co.uk/world/the-nsa-files

 Articles on the NSA files:

http://www.guardian.co.uk/world/2013/jun/27/nsa-online-metadata-collection

http://www.guardian.co.uk/world/2013/jul/11/microsoft-nsa-collaboration-user-data

http://www.guardian.co.uk/world/2013/jun/20/fisa-court-nsa-without-warrant

http://www.guardian.co.uk/world/2013/jun/06/nsa-phone-records-verizon-court-order

http://www.guardian.co.uk/world/2013/jun/06/us-tech-giants-nsa-data

http://www.guardian.co.uk/world/2013/jun/13/nsa-surveillance-guardian-poll-oversight

Articles on Snowden:

http://www.guardian.co.uk/world/2013/jun/11/edward-snowden-what-we-know-nsa

http://www.guardian.co.uk/world/2013/jun/11/edward-snowden-nsa-whistleblower-profile

http://www.guardian.co.uk/world/2013/jun/09/nsa-whistleblower-edward-snowden-why

http://www.guardian.co.uk/world/2013/jul/02/edward-snowden-father-open-letter

Other:

http://www.nytimes.com/2013/07/07/us/in-secret-court-vastly-broadens-powers-of-nsa.html?hp&_r=2&

http://www.theatlantic.com/politics/archive/2013/07/obamas-insider-threat-program-a-parody-of-liberal-faith-in-bureaucrats/277653/




[1] Wikileaks’ own founder and figurehead, Australian-born hacker Julian Assange, is still in hiding in the Ecuadorean Embassy located in London due to his role in Army Private Bradley Manning’s leaks of classified information. (He also faces extradition to Sweden for sexual assault charges, but the espionage charges potentially dealt by the United States are far more serious, and likely the reason for his year-long stay on Ecuadorean soil.)

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