Published by The Lawfare Institute
in Cooperation With
“what we did was evil and cursed and may allah swt MOST merciful forgive us for giving in to our nafs [desires]” . . . “Im putting all my pride aside just to say that i will miss you dearly and your the only person that i really allowed myself to get close to after losing my ex husband, my dad and my brother.. Im glad it was so easy for you to move on and put what we had aside and for me well Im just soo happy i met you. You will always remain in my heart. I know you left for a purpose it hurts like hell sometimes not because Im needy but because i wish i could have been with you.”If the contractor in question were anyone other than Edward Snowden, we would immediately recognize this disclosure for what it is: a massive civil liberties violation of precisely the type we put intelligence under the rule of law to try to prevent. This is an individual using sensitive material collected under what is supposed to be a strict legal regime to advance a personal agenda. But the contractor is Edward Snowden, and the third party is the Washington Post. And for some reason, that changes everything. Many civil libertarians don't seem to mind this particularly gross abuse of signals intelligence content in pursuit of Snowden's individual politics. Over on Twitter, I am facing a barrage of criticism for my brief suggestion yesterday that we should think about Snowden's latest leak in civil liberties terms. I stand by it. Ironically, the law that most clearly forbids what Snowden did here on civil liberties grounds---as opposed to national security grounds---is not the Foreign Intelligence Surveillance Act, whose criminal provisions cover only the use and disclosure of communications data in a fashion not authorized by statute. The Washington Post story actually does not suggest that any of the information Snowden gave it was unlawfully obtained (though as I described in my earlier post, it does raise important questions about the scope of retention of incidental collection under Section 702 with respect to non-targets). So Snowden's actions may ironically not be covered by the FISA---a gap, by the way, that Congress ought to close. On the other hand, the Privacy Act reads in relevant part:
Any officer or employee of an agency, who by virtue of his employment or official position, has possession of, or access to, agency records which contain individually identifiable information the disclosure of which is prohibited by this section or by rules or regulations established thereunder, and who knowing that disclosure of the specific material is so prohibited, willfully discloses the material in any manner to any person or agency not entitled to receive it, shall be guilty of a misdemeanor and fined not more than $5,000.I don't know if Snowden, as a contractor, counts as an "officer or employee" of the NSA for purposes of the Privacy Act. But I have no doubt that Congress in this law specifically sought to prohibit precisely what Snowden did---and that it did so as a civil liberties protection. NSA has an elaborate set of procedures and compliance mechanisms designed to ensure that the data it collects are not misused by its personnel---procedures which clearly failed in this case. These are some of the most important civil liberties protections in the intelligence system. Many of the hostile tweets I have received have argued that I am imputing civil liberties violations by NSA to Snowden, who should be praised for exposing those violations. But that's wrong. The law regulates the circumstances in which collection is legal and it also has a variety of protections designed to prevent abuse of data once that data have been collected. In many places, the law assumes that the government will collect highly-sensitive material about individuals but regulates---sometimes generally, sometimes precisely---what it can and cannot do with that material. In the criminal context, think of Rule 6(e) of the Federal Rules of Criminal Procedure, which prohibits disclosure of proceedings taking place before a grand jury, which hears all sorts of raw allegations and impressions. Similarly, there is a raft of data that is perfectly legal and proper for NSA to collect and use and horridly improper for it---or its employees---to dump in the lap of Barton Gellman. NSA's employees and contractors just aren't permitted to use that material for their own purposes---even if you happen to agree with those purposes. And they're not permitted to disclose it either. One reason is national security. Another reason is fairness to people like the woman who wrote those anguished notes. Ultimately, if you're not outraged by what Snowden did here, it's because you're applying a certain situational ethics. It's because the privacy of that woman in Australia---and though Gellman delicately kept her name out of the story, her whole social world will know who she is---just doesn't matter very much compared to the need to expose NSA activities. If you're okay with dumping in the lap of a journalist 160,000 of the most personal conversations a signals intelligence agency can collect, then stop whining to me about "bulk" or "mass" collection. And if you're okay with Snowden---in the unfettered exercise of his unlimited discretion---choosing Gellman as the sole check and balance on the disclosure of personal data---Gellman who, unlike NSA, has no statutory standard to live up to and no oversight from Congress or the courts---then stop telling me this is about the rule of law. Because you don't really mean it.