Thoughts on Edward Snowden and the PRISM scandal

There is a good deal of debate on the internet about whether Edward Snowden, the ex-CIA contractor who revealed secrets about the government’s extensive surveillance activities, is a criminal or a hero. After thinking about it for some weeks, and reading a lot of opinions, I guess I think he is both. He certainly broke the law by revealing classified information, which makes him a criminal. Yet we as a nation really needed to know the unprecedented extent to which the government had expanded its surveillance activities against US citizens, so to the extent that he knowingly undertook the dangers of revealing this information, he is also a hero in the mold of Daniel Ellsworth and the Pentagon Papers.

The administration argues that all this data collection has already prevented some terrorist activities, and I don’t doubt that it has. But is that an adequate justification for such a wide ranging invasion of privacy? There are lots of things that would make law enforcement, and detection and prosecution of crimes, easier. Putting an electronic tracker on every person would certainly help, but are we willing to let the government do that? (In fact, everyone who carries a cell phone already carries a personal tracker). Putting surveillance cameras in every room of our homes would no doubt detect more crimes, but are we prepared to let the government do that?

The fourth amendment to the US constitution expressly forbids “unreasonable searches”:

 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 

By “unreasonable searches “ it means searches done simply as “fishing expeditions”, without some reason to suspect a crime. That is why police have to go before a judge and request a warrant, and why the judge has to see some reasonable evidence of a probable crime before they will issue that warrant. In theory that is going on with the government’s secret United States Foreign Intelligence Surveillance Court, but in fact that court seems to have approved almost every request put to it (all but 11 of the 33,942 warrants requested up though 2012), which suggests that it isn’t setting a very high bar.

My own sense is that wholesale collection of metadata about every phone call made in the US fits the definition of a “fishing expedition”, or an unreasonable search. The government argues that in fact, while it does collect and store all that information, it can only access it under specific guidelines and with a warrant from the secret Foreign Intelligence Surveillance Court. That would be more convincing if the process of applying for such warrants was more open. Since it is done in secret, essentially in a Star Chamber, it is ripe for misuse and abuse, such as surveillance of political opponents. We have already seen that sort of abuse in, for example, the administration of President Nixon, and more recently in the IRS scandal about conservative groups.

I am reminded of Ben Franklin’s words “Those who sacrifice liberty for security deserve neither”. And of a quote from James Madison: “If tyranny and oppression come to this land it will be in the guise of fighting a foreign enemy.”