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The Third Anniversary of Leaks About NSA Surveillance Programs

Three years ago today, the public learned about extensive surveillance by the U.S. National Security Agency (NSA). Back then, the Guardian UK newspaper reported about a court order allowing the NSA to spy on U.S. citizens. The Electronic Frontier Foundation (EFF) summarized events from 2013:

"It started with a secret order written by the FISA court authorizing the mass surveillance of Verizon Business telephone records—an order that members of Congress quickly confirmed was similar to orders that had been issued every 3 months for years. Over the next year, we saw a steady drumbeat of damning evidence, creating a detailed, horrifying picture of an intelligence agency unrestrained by Congress and shielded from public oversight by a broken classification system. The leaks were thanks in large part to whistleblower Edward Snowden, who has been living in Russia for the last three years, unable to return to the United States for fear of spending his life behind bars..."

Since then, we've learned plenty about how extensive the government surveillance apparatus is and the lack of oversight. We've also learned about NSA code inserted in Android operating system software, the FISA Court and how it undermines the public's trust, the importance of metadata and how much it reveals about you (despite some politicians' claims otherwise), the unintended consequences from broad NSA surveillance, U.S. government spy agencies' goal to break all encryption methods, warrantless searches of U.S. citizens' phone calls and e-mail messages, the NSA's facial image data collection program, the data collection programs included ordinary (e.g., innocent) citizens besides legal targets, and while most hi-tech and telecommunications companies assisted the government with its spy programs, AT&T was probably the best collaborator. A scary, extensive list, eh?

Would the public have learned about all of this without the Snowden leaks? I doubt it. So, thanks to Edward Snowden.

And, this list doesn't include the attempt by the Justice Department to force a hi-tech company to build a "back door" into its products to break encryption. It's been a busy three years. The EFF concluded:

"The Snowden leaks caused a sea change in the policy landscape related to surveillance. EFF worked with dozens of coalition partners across the political spectrum to pass the USA Freedom Act, the first piece of legislation to rein in NSA spying in over thirty years—a bill that would have been unthinkable without the Snowden leaks. They also set the stage for a major showdown in Congress over Section 702 of the FISA Amendments Act, the controversial section of law set to expire in 2017 that the government claims authorizes much of the NSA’s Internet surveillance... Perhaps most importantly, the Snowden leaks published over the last three years have helped to realign a broken relationship between the intelligence community and the public. Whistleblowers often serve as a last-resort failsafe when there are no other methods of bringing accountability to secretive processes. The Snowden leaks have helped illuminate how the NSA was operating outside the law with near impunity, and this in turn drove an international conversation about the dangers of near-omniscient surveillance of our digital communications."

It's not over. The EFF compiled a list of 65 things we know thanks to the Snowden leaks, and a timeline of NSA domestic surveillance. And, Vice News has uncovered some of the documents that highlight the discussions among NSA and government officials about the privacy and Constitutional issues Mr. Snowden raised at the agency before the leaks:

"What's remarkable about this FOIA release, however, is that the NSA has admitted that it altered emails related to its discussions about Snowden. In a letter disclosed to VICE News Friday morning, Justice Department attorney Brigham Bowen said, "Due to a technical flaw in an operating system, some timestamps in email headers were unavoidably altered. Another artifact from this technical flaw is that the organizational designators for records from that system have been unavoidably altered to show the current organizations for the individuals in the To/From/CC lines of the header for the overall email, instead of the organizational designators correct at the time the email was sent."

Because none of the people interviewed by the NSA in the wake of the leaks said that "Snowden mentioned a specific NSA program," and "many" of the people interviewed "affirmed that he never complained about any NSA program," the NSA's counterintelligence chief concluded that these conversations about the Constitution and privacy did not amount to raising concerns about the NSA's spying activities. That was the basis for the agency's public assertions... In April 2014, the month after he testified before the European Parliament, Snowden again challenged the NSA's public narrative about his failure to raise concerns at the agency. In advance of the publication of the Vanity Fair story, the magazine posted a preview online on April 8. "The NSA... not only knows I raised complaints, but that there is evidence that I made my concerns known to the NSA's lawyers, because I did some of it through e-mail," he said."

The Vice News article also discussed the lack of whistle-blower protections for contractors like Mr. Snowden.

Citizens give their government certain powers to act on their behalf. Implicit in that decision is trust. Entrusted with those powers, a government (in a democracy) has an obligation to be transparent with its citizens.


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Chanson de Roland

Two things about this blog post occur to me. First, while I am in substantial accord with the idea that NSA engaged in massive and unconstitutional program of surveillance against Americans and that Mr. Snowden's revelations were essential in alerting the public and many law makers to that unconstitutional surveillance, EFF and the media generally have severely under-reported the far more pervasive surveillance of us all by private tech companies, such as Google, Facebook, Amazon, et al. Those private tech firms' surveillance of us and their collection and use of our personal information is far more complete, thorough, comprehensive, and pervasive than anything that the U.S. government does. And I fear will ultimately prove to be far greater danger to our democracy, our human rights, and our human dignity than anything that the government does or may do.

The second thing that strikes me is the utter mendacity of NSA claim that it did not know of that such pervasive surveillance was almost certainly unconstitutional, and it knew about that long before Edward Snowden raised his concerns. In 2004, James Comey, then Acting U.S. Attorney General, who is now Director of the FBI, refused to authorize a very similar unconstitutionally pervasive program of spying on Americans. When the G.W. Bush Administration threatened to proceed without Comey's authorization, both Comey, as Acting U.S. Attorney General, and then FBI Director Robert Muller threatened to resign if the G.W. Bush Administration proceeded with the surveillance program without Comey's authorization.

And, of course, there were three other whistle-blowers inside of NSA, who preceded Snowden, and who all have paid a heavy price for informing or trying to inform the American public about NSA's unconstitutional spying on Americans. Those men are: Thomas Drake, William Binney and J. Kirk Wiebe. President' Obama's Department of Justice prosecuted all of these men, destroying their careers, their finances, their families, and friendships.

Mr. Drake was successfully prosecuted for doing far less than what Hillary Clinton did by exposing our Nation's most important secrets on her personal email server. Yet Mr. Drake was prosecuted for his disclosure, which the court found did not disclose any classified information, whether marked or not marked as classified, and with the presiding judge questioning why the government was even prosecuting Mr. Drake.

"For years, the three whistle-blowers had told anyone who would listen that the NSA collects huge swaths of communications data from U.S. citizens. They had spent decades in the top ranks of the agency, designing and managing the very data-collection systems they say have been turned against Americans. When they became convinced that fundamental constitutional rights were being violated, they complained first to their superiors, then to federal investigators, congressional oversight committees and, finally, to the news media."


So NSA has known about the fatal constitutional defects in its program of pervasive surveillance of Americans without probable cause, i.e., without a reasonable basis for believing that a person is involved in crime, at least since 2002, when Thomas Drake, a then senior NSA officer, who was a manager of a similar program called Trailblazer, stated his objections, using proper procedure and channels. And, as I write, supra, then Acting U.S. Attorney General refused in 2004 to authorize a very similar program because of its unconstitutionality. So NSA saying that it was unaware of objections to such a broad programs of surveillance as unconstitutional is utterly disingenuous and is a flat out lie, because it had notice of those objections from several of its senior employees since at least 2002.

And to this day President Obama has not pardoned Mr. Drake, a decorated veteran of both the United States’ Air Force and Navy, so that he can receive his full government benefits and pensions, as at least some recognition of Mr. Drake's heroic service in protecting our democracy and as some small yet wholly inadequate compensation for the way that Obama's DOJ destroyed his family, his career, his finances, and his reputation.



Thanks for the detailed comment. A good reminder about Thomas Drake, William Binney, and J. Kirk Wiebe. I should have included in the above blog post a link to my June 21, 2013 blog post about:

3 Former NSA Employees Interviewed By USA Today: "We Told You So"

That 2013 blog post also contains a link to a 2008 blog post which discussed questions raised in an Wall Street Journal article.

And, after reading the Vice News article, I got the distinct impression the officials in the NSA and government are tying their selves in knots to obfuscate, minimize, and avoid admitting to the clear inquiries and questions Mr. Snowden raised before the leaks. Officials clearly had plenty of opportunities to respond.


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