Editor’s Note – As the technological realm becomes more pervasive, whom can we trust? Each week, Liberty Nation brings new insight into the fraudulent use of personal data, breaches of privacy, and attempts to filter our perception.
He’s been labeled both a traitor and a truth-teller: Edward Snowden, the National Security Agency contractor who decided to blow the whistle on mass surveillance. Documents he provided to newspapers in 2013 shed light on internet and phone tracking by the U.S. government and stirred conversations on privacy in the digital age. Snowden remains a prominent voice for privacy in the online sphere, yet he is now living in exile in Russia, having been charged in the U.S. for theft of government property and violations of the 1917 Espionage Act. While America has long viewed Snowden as an enemy of the state, could the mood be changing?
Court Calls NSA Surveillance Illegal
On Sept. 2, the Ninth Circuit Court of Appeals ruled that the NSA surveillance dragnet as exposed by Snowden was illegal, violating the Foreign Intelligence Surveillance Act (FISA) and possibly the Constitution.
The court case was brought by Somalians who were convicted of sending money overseas to fund terrorist organizations. They appealed, claiming the evidence against them was gained unlawfully. The court found that the convictions were not tainted by the surveillance and would therefore remain in place, but it “held that the government might have violated the Fourth Amendment when it collected the telephony metadata of millions of Americans, including at least one of the defendants, pursuant to the Foreign Intelligence Surveillance Act (FISA) …”
The court ruling continued:
“On the merits, the panel held that the metadata collection exceeded the scope of Congress’s authorization in 50 U.S.C. § 1861, which required the government to make a showing of relevance to a particular authorized investigation before collecting the records, and that the program therefore violated that section of FISA.”
In essence, the court stated that the NSA had violated Americans’ privacy by surveilling their communications data without probable cause of a crime – the information was collected en masse.
The ACLU, which has long supported Snowden’s cause, tweeted in response to the decision: “This ruling, which confirms what we have always known, is a victory for our privacy rights.”
“Seven years ago, as the news declared I was being charged as a criminal for speaking the truth, I never imagined that I would live to see our courts condemn the NSA’s activities as unlawful and in the same ruling credit me for exposing them,” Snowden wrote on Twitter. “And yet that day has arrived.”
What Did Snowden Show?
Snowden is perhaps the most recognizable name in the whistleblower directory of the 21st century – but what did he actually reveal to public eyes? There are too many revelations to describe here, so let’s focus on a few pursuant to digital rights. Many of these programs were ostensibly started to collect information on potential terrorists – yet they also gathered countless materials on the American public.
The first exposé described the PRISM data mining program, which allowed NSA access to Americans’ Google, YouTube, Apple, Facebook, Microsoft, Skype, AOL, and Yahoo accounts. Intelligence services were given direct access to information such as emails, chat, photos, video conferencing, stored data, the user’s login activity, and more. The program appears to be ongoing, having been renewed by Congress in 2018, although there was talk of ending it in 2019.
Then there was a FISA court order demanding Verizon phone call records for the NSA on an “ongoing, daily basis.” The order included a non-disclosure section preventing Verizon from revealing the probe publicly. It compelled Verizon to supply to the NSA “all call detail records or ‘telephony metadata’ created by Verizon for communications between the United States and abroad” or “wholly within the United States, including local telephone calls.” The FBI was granted similar access for a period. This wasn’t the first time a story about the NSA collecting phone data came to light; a 2006 report revealed the Bush administration had collected such information – but Snowden confirmed it had continued under Obama.
The FISA court also allowed the collection of vast email and internet usage records on Americans – every 90 days approving a “collection of bulk internet metadata.”
A program called XKeyscore permitted “analysts to search with no prior authorization through vast databases containing emails, online chats and the browsing histories of millions of individuals,” according to Guardian reporter Glenn Greenwald, a vessel for many of Snowden’s leaks.
These few points represent just a fraction of Snowden’s revelations, which are remarkable in scope and volume – with topics ranging from how the NSA spied on foreign enemies and allies, to industrial espionage, black budgets, and various additional stories on surveilling Americans.
Is a Pardon Coming?
Human rights activists and whistleblower advocates have been calling for the U.S. president to pardon Snowden for years. While that looked impossible for a while, speculation has grown since President Trump recently told New York Post he was going to be looking at the matter, having reportedly polled his staff for opinions. “There are a lot of people that think that he is not being treated fairly. I mean, I hear that,” Trump said. “Many people are on his side, I will say that. I don’t know him, never met him. But many people are on his side.”
As the paper points out, Trump’s remarks show a notable softening since he referred to Snowden in 2013 as a “traitor” who should be “executed.” However, the Post highlights what may have changed Trump’s perspective – the apparent illegal surveillance and FISA abuse that targeted his own 2016 presidential campaign. The president added: “I’ve heard it both ways. From traitor to he’s being, you know, persecuted. I’ve heard it both ways.”
Politically, the matter is just as divisive – though the rift seems to run less along party lines and more along establishment vs. insurgent ones. Republican lawmakers, including Sen. Rand Paul (KY), Rep. Thomas Massie (KY), and Rep. Matt Gaetz (FL), also called for Snowden to be pardoned. Neocon holdover Rep. Liz Cheney (R-WY) said such a move would be “unconscionable.” Sen. Lindsay Graham (R-SC) condemned Snowden for putting military lives at risk.
As for the Democrats, a last-minute favorite to join Joe Biden’s 2020 presidential ticket, Susan Rice, tweeted against the idea. Meanwhile, Salon handed the spotlight to Democrat activist Evan Greer who urged members of the progressive Squad to publicly call for a pardon or risk handing a victory to Trump.
Given that Snowden hasn’t been convicted of a crime, a pardon would appear to contradict his right to the presumption of innocence until proven guilty – though pre-emptive pardons do exist. The most famous example of a presidential pardon prior to a conviction is that granted by Gerald Ford to Richard Nixon over the Watergate scandal, allowing a trial to be avoided. George W. Bush also pardoned officials before a conviction, and then there was President Andrew Johnson’s 1868 pardon of all Confederate soldiers in the wake of the Civil War. According to the Justice Department website, Jimmy Carter’s pardon for Vietnam draft dodgers also counts.
The drive to pardon Snowden apparently stems from his charges under the Espionage Act, which do not allow for a “public interest” defense. It could additionally avoid a trial which may be unfair or hostile, and grant him the ability to return to his home country from exile, without fear of further attempts at prosecution. But whether or not a pardon is in the cards, even the president doesn’t know.
That’s all for this week from Tech Tyranny. Check back next Monday to find out what’s happening in the digital realm and how it impacts you.
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Read more from Laura Valkovic.
