Edward Joseph Snowden was born on June 21, 1983 in Elizabeth City, North Caroline (Tolu, 2015). He was an American computer specialist, who is known for his talents in computer programming and cyber security. Snowden was a former employee of the Central Intelligence Agency (CIA) and former contractor of the National Security Agency (NSA). In 2007, as Snowden rose to ranks in the CIA and gained access to high security clearance documents, he started questioning the method of operation of the United States’s Intelligence community (Currie & McIntyre). The peak of Snowden’s frustration came in March 2013, six years after his first revelation with the U.S. intelligence operations. At this point Snowden was stationed in Hawaii and worked as a contractor for the NSA. In May 2013, Snowden took an unpaid medical leave and flew to Hong Kong. At here, Snowden met with Gleen Greenwald, a journalist at The Guardian and Laura Poitras, a documentary filmaker, with whom he had established communication a year earlier (Tolu, 2015). Snowden disclosed a selected fews of classified government documents to Greenwald which was then published through WikiLeaks and The Guardian. The leaked files exposed four operations of the NSA and U.S. government in effort to survey its own citizens indiscriminately. The first segment of the leaked files revealed the mass data collection of domestic emails and telephone metadata from Verizon (Currie & McIntyre). The confidential court order required Verizon to transfer customer information to the NSA on a daily basis (Currie & McIntyre). Greenwald, commented on the confidential court order “shows for the first time under the Obama Administration the communication records of millions of U.S. citizens are being collected indiscriminately and in bulk – regardless of whether they are suspected of any wrongdoing” (Greenwald, 2013). The second segment of the leaked files disclosed the program Prism, a surveillance operation launched in 2007 by the NSA. The program’s objectives is to collect the private information of internet accounts directly from the servers of nine flagship U.S. internet companies, such as, Microsoft, Google, and Facebook (Greenwald & MacAskill, 2013a). In addition to Prism, NSA also fathered Muscular. Muscular provides back door access to internal data centers of Yahoo and Google, which increases the NSA’s ability to conduct secret surveillance and gather information of private accounts (Greenwald & MacAskill, 2013a). Finally, the leaks included outlinings of Boudless Informant, a datamining tool used by the NSA to record and analyze the origins of the agency’s intelligence (Greenwald & MacAskill, 2013b). The tool acts like a heat map, mapping and detailing by country the amount of information the NSA collects from computer and telephone networks (Greenwald & MacAskill, 2013b).
Within days of the publication of the classified documents, the United States Department of Justice filed an official criminical complaint and charges against Snowden under the Espionage Act, including (1) theft, (2) unauthorized communication of national defense information and (3) willful communication of classified communication intelligence information to an unauthorized person (Finn & Horwitz, 2013). Each of the three charges carried a ten-year prison sentence (Tolu, 2015).
Snowden fled from Hong Kong to Russia, where he was granted a one-year asylum and then a three-year residency (Tolu, 2015). Since then, Snowden has engaged in several public appearances through teleconference to dicuss the motivation behind his action. Whether good or bad, Snowden has set in motion something that has been brewing over the years since Internet and cellphone became the essential tools of communication. In the mist of legal and ethic controversy, lies one of the most important topics in the American civic history, the debate of the First Amendment, specifically the freedom of speech.
Legal and Free Speech Implications of U.S. v. Snowden
Since Snowden fled to Russia, he has not been trialed in Court. Opinions regarding his reaction was mixed within the U.S. officials and the public. Some concern about their privacy and the degree in which the government is involved in private citizen lives, some strongly critize Snowden for his selfish and reckless act that put the U.S. intelligence operatives in danger and some question if Snowden has any rights at all to reveal classified documents. Secretary of State John Kerry urged Snowden to come back home and face the charges for the damage done to his country (Tolu, 2015). Similarly, former Secrete of State Hillary Clinton strongly critized Snowden’s actions, stating that he had broken the law and should have taken other actions, for example, communicating with the Senate representatives who were interested in privacy and surveillance issues (Tolu, 2015). She also noted that instead of being accountable for his actions, Snowden decided to go to two countries (Hong Kong and Russia) which the United States has difficult diplomatic relationship with (Tolu, 2015). In the Congress, Senator Mitch McConnel, the Republican Leader of the Senate, expressed his disapproval of leaking classified material while Democratic Senator Ron Wyden called for public hearings (Tolu, 2015). Similar, Democratic Representative Brad Sherman believed that the NSA had “too much latitude and too little oversight” (Tolu 2015). In Snowden’s case, the privacy and free speech issues intertwined together and is difficult to treat separately. Snowden and his attorney argued that with the criminal charges filed against him, he would never stand a chance of fair trial. Snowden maintains that the laws does not provide whisleblower’s protection to contractor and The Espionage Act was hardly appropriate in this situation (“NSA Leaker”, 2014). The U.S. Espionage Act was established in World War I using to prosecute spies in their effort of aiding the U.S.’s enemies and most of the time the act were financially motivated (Tedford & Herbeck, 2017, p.45).
In regards to the rights to privacy, in December 1890, Louis D. Brandeis, who later became a Supreme Court Judge and his law partner Samuel Warran, published a 28-page essay “The Right to Privacy” in the Harvard Law Review (Tedford & Herbeck, 2017, p.108). The article has become one of the most influential law journal piece and has been cited in hundreds of federcal and state court decision (Tedford & Herbeck, 2017, p.108). Although the word “privacy” does not appear in either the text or the amendments of the U.S. Constitution, but the ideas of privacy was expressed in the First Amendment as privacy of belief, in the Third Amendment as privacy of the home against quartering of soldiers, in the Fourth Amendment as privacy of people against unreasonable searches and in the Fifth Amendment as privacy against self-incrimination (Tedford & Herbeck, p. 109). Snowden’s leaks reveal that the NSA and U.S. government has heavily violated such rights to privacy. In a Washington Post article by Nakashima & Marimow (2013), the judicial front was reported with split opinions. In Klayman v. Obama, the U.S. District Judge Richard J. Leon found that one of the NSA programs that indiscriminatedly collected phone metadata of Americans “infringes on that degree of privacy that the founders enshrined in the Fourth Amendment”( Nakashima & Marimow, 2013). Judge Leon granted the request for an injunction, blocking the collection of phone data for the plaintiff and order the government to destroy any of the gathered records (Nakashima & Marimow (2013). In contrast, in ACLU v. Clapper, U.S. District Judge William J. Pauley ruled that the collection of phone records’ metadata was legal (Tolu, 2015). In November 2014, a NSA surveillance reform was proposed under the “USA Freedom Act” (Tolu, 2015). It passed in the House of Representatives, but was two votes short of passing in the Senate (Tolu 2015). The rising threat of the Islamic State (ISIS) and continuing unrest in Syria and other nations seemed to have cooled the public disapproval of NSA surveillance programs (“Majority Views”, 2013). However, Snowden’s suggestion to technology corporation reforms in order to end mass surveillance seems to have been heard (Tolu, 2015). Google and Apple has increased the encryption of their operating systems such that even the companies themselves are unable to access client data (Tolu, 2015).
Because of the divided opinions on many fronts, it is hard to predict what is the exact outcome of U.S. v. Snowden. In a future, should Snowden come back to the U.S. either by choice or expedition, the rulling of the case will certainly spark interests and mark history in the legal system.
Ethics of the Snowden Effect
Snowden’s action has sent shockwaves in both American domestic and international audience. The incident inspires many scholars to discuss and analyze Snowden’s motivation and state of mind. In a New York Times article (2013), John M. Broder, a foreign affiar and defense expert and Scott Shane, a journalist about U.S. intelligence portrayed Snowden as a young computer genius but may have an “anti-authority spirit.” Broder and Shane also criticizingly suggested Snowden’s acts as personal ambition to become a heroic whisle blower inspired by previous Bradley Manning and Daniel Ellsberg. As Currie & McIntyre pointed out in their case study that although Snowden denied these allegations outright and insisted that his focus was transparency, it is to be noted that Snowden has become very well-known from the leaks as he agreed to hundreds of interviews and allowed a documentary to be filmed on his life. In an hour-long interview via teleconference with Harvard Laws Professor Lawrence Lessig, Snowden explained that with his privileged access or PriAcc, it’s certainly a possibility for him to cause more harm by revealing peronnel records of everyone who worked in the intelligence community. However, causing harm is never his attention. Snowden said he tried to ensure that only information that was necessary for the reporting was made available to journalists working in the public interest. Snowden has stayed consistent with his goals since the beginning as in the orginial Guardian article, Snowden also said: “I carefully evaluated every single document I disclosed…because harming people isn’t my goal, transparancy is.” (qtd in Greenwald el al, 2013). Furthermore, there is no evidene that proves Snowden has shared any specific classified documents with foreign countries and the government has not cited a single instance where the Snowden leaks have compromised their intelligence operations (Currie & McIntyre).
Jay Rosen, a media critics, has coined the term “the Snowden effect” to describe what Edward Snowden has set in motion in June 2013. According to Rosen, the Snowden effect is defined as direct and indirect gains in public knowledge form the cascade of events and further reporting that followed Snowden’s leaks of classified information about the surveillance state in the U.S. (Rosen, 2013). In a recent panel discussion at University of Arizona (UA) with Greenwald and intellectual Noam Chomsky, Snowden remarked: "Privacy is the right to a free mind” (“Edward Snowden”, 2016). "Without privacy, you can't have anything for yourself. Saying you don't care about privacy because you have nothing to hide is like saying you don't care about free speech because you have nothing to say” (qtd in “Edward Snowden”, 2016). In the same discussion, Chomsky commented that the Internet was intended to be a free and opean means of communication in hopes that it would broaden the horizon and contribute to a healthy society.
Similar to U.S. Congress, judiciary and the media, American public’s discussion about Snowden’s ethic is also divided. Bruce Schneier, a security issue expert blogger, analyzed a 2014 Pew Research of public perception of privacy and security in the Post-Snowden Era and concluded that over 700 milion people worldwide have taken steps to avoid NSA surveillance. However, in a 2013 Pew Research, the study found that majority (56%) views NSA phone tracking as acceptable anti-terror tactic. 62% of American says it is more important for the federal government to investigate possible terrorist threats, even if that intrudes on personal privacy (“Majority Views”, 2013). It seems that the people is more willing to trade off privacy for security when the situation is called for. Greenwald, in the panel discussion at UA remarked about such tradeoff is a “false dichotomy.”
In an article remarking the three-year period since Snowden leaks, Jack Goldsmith, a professor at the Harvard Law School, asserted that despite the intelligence losses, new collection barrier and diplomatic embarassments, the community has emerged as a stronger organization, because of Snowden (2016). What Snowden did may have violated the laws and there are legal grounds for his persecution. However, he performed a public services by forcing the overdued dialogue between the intelligence community and the American public. In the post-Snowden era, the intelligence communty operates on the principle that secrecy is not an absolute value, but one that needs to be traded off for other values, including domestic legitimacy (Goldsmith, 2016).
Conclusion
From the “loose lips sink ships” propaganda poster of 1920s World War I era to the USA Patriot and Freedom Act of 2010s advanced technology era, it seems that people’s rights were taken away unkowingly and willingly in times of danger for the greater good. The never-ending clashing of the freedom of speech and national security is a pressing debate. Through history, philosophers and scholars of numerous fields have been bothered by the question of where the line is drawn between government and citizen privacy as well as between democracy and dictatorship. The rapid changes of the world and human advancement seems to make the question harder to find an appropriate answer. Perhaps, the founding Fathers of the U.S. Constituion has wanted the truth to be found during the debate of government and of people. In their own rights, Snowden and the U.S. government was both fighting for justice. Some people regard Snowden as a traitor while some see him as a hero of public interest. However, no one could deny the rippling effect and obvious changes that Snowden leaks has made. From the physical evidence and pschological analysis, Snowden is shown to have thought carefully about his actions over the span of at least six years. He clearly understood the consequences of his actions but when asked if he would willing to do it all over again and exposed classified documents. He answered: “absolutely, and I wouldn’t wait as long as I did.”
In a landmark court case of the rights to privacy, McIntyre v. Ohio Elections Commision, Justice John Paul Stevens remarked that “Under our Constitution, anonymity, is a shield from the tyranny of the majority to protect unpopular individuals from retaliation – and their ideas from supression – at the hand of an intolerant society” (Tedford & Herbeck, 2017).