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8 August 2014

An INS Special Forum: Implications of the Snowden Leaks

A sends:

http://www.tandfonline.com/doi/full/10.1080/02684527.2014.946242

An INS Special Forum: Implications of the Snowden Leaks

In 2013, the National Security Agency (NSA) in the United States became
embroiled in controversy ­ again. Its questionable use of wiretaps
(Operation MINARET) and its improper reading of international cables sent
and received by Americans over decades (Operation SHAMROCK) had been
revealed by the Church Committee in 1976; and in 2005 the New York Times
disclosed that the NSA had been wiretapping selected American citizens
without a warrant, contrary to the Foreign Intelligence Surveillance Act
of 1978.

In this most recent scandal, the NSA hired Edward J. Snowden to help with
some of its computer work. At the time of his hiring in 2013, Snowden ­ a
29-year-old high school dropout from suburban Maryland and a former CIA
computer specialist ­ was under contract as a data specialist with the
giant defense firm Booz Allen Hamilton. In his short stint with the NSA,
Snowden reportedly stole some 1.7 million classified documents from the
agency's computers. He leaked many of these documents over the next year
to American and British journalists, as a protest against what he viewed
as improper surveillance methods used by the NSA against American and
British citizens. The stolen documents also revealed that the NSA had been
wiretapping the communications of some leading US allies, including the
cellphone of German Chancellor Angela Meckel. She was not pleased to learn
about this intrusion. ‘Surveillance Revelations Shake US-German Ties’,
observed a New York Times headline. Nor were other Europeans happy about
the revelations of widespread NSA surveillance against them.

Before releasing the first of his documents, Snowden fled the United
States in search of a safe haven, first to Hong Kong and then (when other
options fell through) to Russia. The leaks revealed that the NSA had been
gathering ‘metadata’ (the records of telephone numbers dialed and the
duration of calls) on about a third of all the telephone calls made by
American citizens, both inside the United States and with parties
overseas; moreover, the agency was collecting data on the use of social
media by US citizens. The appropriateness of this ‘dragnet’ or ‘bulk
collection’ method of intelligence gathering, and against Americans no
less, became a topic of heated national debate in 2013, spilling over into
2014. It appeared that the NSA preferred a vacuum-cleaner approach to
electronic surveillance, while its critics advocated a more pinpointed
targeting of individuals based on a standard of probable cause that they
might be involved in terrorist activities.

Central to the debate stood the question of whether or not Snowden was a
patriot for disclosing to the public a questionable intelligence program
or a traitor for his unauthorized disclosure of classified information ­
much of it going beyond the metadata program that he claimed had justified
his actions. The retiring NSA Director, General Keith B. Alexander, called
the Snowden leaks ‘the greatest damage to our combined nations’
intelligence systems that we have ever suffered’. In contrast, his
replacement in 2014, Admiral Michael S. Rogers, deplored the leaks but
downplayed their damage, saying that there was no indication ‘the sky is
falling’.¹ The Times had noted earlier that none of the secret agencies
had presented ‘the slightest proof that his disclosures really hurt the
nation's security’.²

In June 2014, the US House enacted legislation ­ the USA Freedom Act ­ to
trim back on the breath of the NSA metadata program, although not to ban
it altogether. The Senate was expected to take up the measure in summer
2014. Shortly before the House passed the bill, the editors of
Intelligence and National Security asked some members of its Editorial
Board to comment on the implications of the Snowden leaks. I would like to
take this opportunity to thank the participants for their thoughtful
contributions, under a short deadline. Below, in alphabetical order, are
their responses.

The main significance of Edward Snowden relates more to the decline of
secrecy than the decline of privacy. The UK and US governments are
increasingly concerned by large-scale and unauthorized releases of
classified documents facilitated by disaffected officials who are often
described as ‘whistle-blowers’. Governments invest considerable resources
in protecting secrets and, in the United States, the annual cost of
classification is estimated at US$11 billion. Yet we know little about
elite attitudes toward secrecy and its opponents. We need to reflect on
this notable lacuna at a time when legislators are urgently reviewing
these issues which increasingly connect science and security.

In June 2013, Snowden leaked remarkable details of several highly
classified US/UK mass surveillance programs to the press, sparking an
international furor. He was vilified and applauded in equal measure.
Officials in London and Washington regard these latest disclosures as the
most serious breach in government security for several decades. The media
have framed this episode around surveillance and civil liberties, focusing
upon ‘the end of privacy’. Certainly, there has been a degree of moral
panic, with governments allegedly able to monitor every aspect of our
digital lives. However, it is our contention that the nature of privacy
has in fact changed little over the last decade and instead these
developments denote a ‘crisis of secrecy’. The real issue is not
government looking at us, but us looking at government.

Information and Communications Technology is central to this process. Ten
official whistle-blowers have come to public attention in the last decade,
beginning with the GCHQ (the British counterpart of the NSA) employee
Katherine Gun in 2003. However, since 2010, websites such as WikiLeaks
have deployed anonymizing software to allow officials to release very
large collections of documents, in collaboration with several mainstream
newspapers. In November 2010, the website leaked more than 250,000 US
diplomatic cables, exposing the frank views of officials on a wide range
of current international issues. As Heather Brooke, the journalist who
exposed the UK parliamentary expenses scandal, observed in the wake of
this event: ‘The data deluge is coming’.

Scholars now need to interrogate the nature of state secrecy in the United
States and the United Kingdom in the early twenty-first century. We need
to discover how disaffected government employees and contractors are using
new technology to challenge secrecy, and how officials are responding to
the present crisis of secrecy. We need to ask whether we are on the brink
of what David Brin described as ‘The Transparent Society’, in which it
will be increasingly difficult for governments to safeguard classified
information. In the 1970s, Daniel Ellsberg required 24-hour access to
photocopiers in order to leak the ‘Pentagon Papers’, but now disgruntled
officials can release entire archives of secret material with a pen drive.

Perhaps the most substantial challenge that a government now confronts is
a cultural one around new forms of oversight and accountability. Internet
activists and digital whistle-blowers claim that their purpose is a new
form of horizontal regulation secured through the democratization of
information. In the ‘twitter age’, the use of blogs and social networks
are allowing journalists to mount lengthy investigations that rival those
of elected bodies. Deep investigation of government security activity may
be passing from formally constituted commissions and committees toward a
version of global civil society, characterized by NGOs, civil rights
lawyers, journalists, and regional bodies such as the Council of Europe.

There are attendant regulatory questions for parliaments and assemblies.
Both the United States and Europe are investigating the entire question of
‘Whistle-blower Protection’, raising important normative issues around
where the line should be drawn between the public right to know and the
right of civil servants to offer confidential advice to ministers. Snowden
has placed officials in Whitehall and Washington on notice, and new
conventions around what remains of secrecy will need to be put in place.

It was inevitable, I suppose, when the story broke about Edward Snowden's
conveyance of thousands of NSA documents to journalists, that I would
compare it to the first time NSA was ‘outed’. I had researched and, in
2009, published a scholarly article on how two young American employees of
NSA ­ Bernon Mitchell and William Martin ­ had defected to the Soviet
Union in 1960 and revealed many ethically and legally questionable
activities of the Agency. With NSA as one of its main tools, the United
States government had spied not just on the Soviet Union, but on allies,
and had even monitored communications going in and out of the United
States. Congressional oversight of NSA was entirely lacking, Mitchell and
Martin said that they had gone to a member of Congress with their
information about the Agency's activities and seen no concrete results; so
they traveled secretly to Moscow and held a ‘tell all’ press conference
that was extensively reported by American and international news media.
Then they settled down to their new lives in a place that turned out not
to be the workers' paradise they had expected.³ I was struck by the
roughly equal traits of naïveté and arrogance that led them to do what
they thought was the idealistic thing. They thought the United States had
been uniquely unjust in its foreign policies and intelligence activities,
and they wished to alert American citizens and the world to these things.
But in 1960s America, there was virtually no sympathy for the two young
men. Harry Truman said, ‘They ought to be shot’, and few thought the
former President's statement out of line.

Snowden seems the same ­ naïve and arrogant, but also wishing to do good.
As he told one interviewer: ‘Sometimes to do the right thing you have to
break a law. And the key there is in terms of civil disobedience, you have
to make sure that what you're risking, what you're bringing on to yourself
does not serve as a detriment to anyone else, it doesn't hurt anybody
else’.⁴

Snowden claims that the United States and its people have not been hurt by
his actions, but how can he possibly know that? Did it serve the interests
of the American people for the government of China to learn (from the New
York Times, relying on documents from Snowden) that NSA hacked into the
servers of the Chinese telecom company, Huawei?⁵ I doubt it. On the
contrary, foreign governments and groups have obviously learned much about
US intelligence that they should not know.

I know from experience that the US government stupidly, wastefully, and
illegally keeps half-century or even older documents secret. I am not
inclined to sympathize with absurd government classification policies. But
Snowden's documents are not old or irrelevant to current international
politics. Had he limited his release of documents to some small number
showing that the NSA was collecting data on communications of ordinary
Americans, I would have some sympathy and respect for him. The trove he
turned over, however, is vast and the benefit to governments and groups
hostile to the United States seems obvious.

There can be no doubt, though, that Snowden's revelations have led many in
Congress, the judiciary, and the executive branch to pay more attention to
NSA. That, I hope, will be for the good. Early in 2014, the New York Times
editorialized: ‘He may have committed a crime to do so [that is, revealing
information and exposing intelligence abuses], but he has done his country
a great service. It is time for the United States to offer Mr. Snowden a
plea bargain or some form of clemency’.⁶

I think that, with Mr. Snowden, we have a very mixed bag. Some good and
probably some very bad results have come out of his actions. Perhaps if he
comes back to the United States and faces the legal process (without a
guarantee of clemency), I might develop some slight respect and sympathy
for him. In the meantime, I'll stick with the highly imperfect elected
officials and judges rather than a naïve and arrogant young man to decide
what intelligence agencies should do or not do, and what we should know
about them.

Just over one year ago secret documents taken by NSA contractor Edward
Snowden began appearing in the press. In the months that followed
virtually all aspects of NSA's program have been debated. Perhaps no
debate has been as emotional as that over Snowden's motives and actions.
Representative John Boehner (R, Ohio), the Speaker of the House,
identified him as a ‘traitor’. Senator Diane Feinstein (D, California),
chair of the Senate Select Committee on Intelligence, said Snowden
committed ‘an act of treason’. The American Civil Liberties Union
characterized Snowden as a patriot.

Assessing the long-term significance of Snowden's leaking of secret
intelligence information to the media requires moving beyond
characterizations such as these to focus on the underlying context within
which his actions took place. The most commonly debated question is
whether Snowden should be considered a whistle-blower. As used in the
media Snowden is a whistle-blower, since his release of the NSA documents
brought attention to a highly controversial secret government program and
promoted public debate over its merits. From a legal perspective Snowden
is not a whistle-blower. As defined in legal statutes and policy
directives, whistle-blowing refers to the lawful disclosures of wrongdoing
made through appropriate channels to those who can correct them and
includes channels for bringing them to the attention of Congress. From
this perspective, whistle-blower protection neither refers to nor covers
unlawful communications.

Too often the debate over Snowden's actions begins and ends here. This is
unfortunate since the question of whether Snowden is a whistle-blower or
if he stole and leaked information has greater long term significance. We
can begin to grasp these implications by employing three core concepts
introduced by Albert Hirschman: exit, voice, and loyalty.⁷

To exit is to leave an organization and cut one's ties to it. Most often
this is done in silence. Voice is whistle-blowing; it is protest from
within, designed to alert organizational officials of a failing in need of
correction. Loyalty is to remain in an organization and support it out of
a sense of commitment to its mission. Together, they define the set of
options individuals must choose from if they feel their organization is
not performing as it should. These options do not exist in isolation from
one another. Without the possibility of exit, loyalty loses much of its
meaning. Without loyalty, exit is a costless strategy for someone
disaffected by organizational policies and products. Loyalty postpones
exit and in the process can activate voice. Yet, voice can be overdone and
hinder rather than promote organizational reform if it produces a backlash
within the organization. It may also be routinized to the point where it
loses its ability to promote change.

Three points are particularly noteworthy in looking at the dynamics and
consequences of exit, voice, and loyalty for the Snowden case. First,
complete exit is impossible when the organizational product is a public
good. One cannot walk away from the consequences of intelligence failures
or secret electronic surveillance. In these cases, exit is unlikely to be
a silent departure but one that takes on an accusatory tone whose charges,
in Hirschman's words, are ‘unanswerable’. Snowden's intelligence leaks fit
this category very well, as evidenced by the often tortured defense put
forward by NSA officials and supporters.

Second, loyalty's ability to activate voice over exit increases with an
individual's depth of identity and commitment to an organization. One
should not expect to see contractors evidence the same depth of loyalty as
career employees. The increasing reliance on contractors to perform
intelligence functions thus raises a warning sign, as it may contribute to
the existence of an organizational environment that supports exit and
future leaks.

Third, in making calculations as to whether to exit or use one's voice,
individuals rely heavily on past experience. Snowden is not the first to
select exit and leak secret intelligence. He pointedly noted that those
who had gone before him had been ‘destroyed by the experience’. The
accuracy of this assessment is of less significance than the fact that
Snowden believed it to be true and guided his decision making. Future
potential whistle-blowers may not act as copycats but they will be
watching closely both his fate and those of intelligence officers who
exercise voice over exit.

To ask whether Edward Snowden is a traitor or a hero is to pose the
question crudely, but it does take us to central issues. We should try to
separate motives from effects, although the two overlap and neither are
entirely knowable at this point. It seems clear that Snowden did not seek
to harm the American national interest, at least as he saw it. He was not
moved by financial gain and did not owe his allegiance to another country
or to a cause associated with one. Although he may have been moved at
least in part by the desire to be in the spotlight, given the price he
knew he would pay even the harshest critic would be hard pressed to deny
that his main motive was to change what he saw as disastrous American
policies. Of course, it is also true that ideologically-motivated spies
like Alger Hiss and the Rosenbergs were serving what they saw as the
American interest, believing that not only the Soviet Union but the
citizens of the US would be better off if the former country were
strengthened. Snowden perhaps wanted to strengthen the other countries'
abilities to protect themselves against American intrusions, but this is
hardly the same thing.

In his desire to change American policy, Snowden more closely resembles
Daniel Ellsberg, who calculated that revealing the deceptions of the
Kennedy and Johnson administrations would allow President Nixon to
renounce the war. Unfortunately, Ellsberg badly misjudged Nixon's beliefs
and values, although the release may have slightly accelerated the erosion
of public support for the war. Furthermore, while critics argued that this
massive loss of secrets would damage American diplomacy, as far as we can
tell this did not happen, which among other things raises the question of
whether the United States and other countries need to keep as many
documents secret as they do.

The effect of Snowden's releases have been much greater. The most credible
claim that Snowden is a hero rests on the fact that, unlike Ellsberg, he
has produced a change in policy. In the wake of the releases, President
Barack Obama called for a national dialogue on surveillance; but he
disingenuously failed to acknowledge the fact that such a conversation was
only possible because of what Snowden did. Although the public was
divided, a presidential commission called for reforms; and some, but not
all of them, appear likely to be enacted into law. Once Congress
understood what the government was doing, it declared that we had drawn
the balance between security and civil liberties wrong; the president, who
had sponsored the old policy, agreed. If this does not make Snowden a
hero, it certainly makes the label of traitor a bad fit.

Of course, critics say that the new restrictions were not necessary to
protect our rights and have left us less secure. This may be so, but two
objections are obvious. First, the value of the extensive domestic
surveillance has never been demonstrated; and, second, the current policy
was arrived at through a more open and democratic process than was the
earlier one.

The related argument that Snowden's revelations have destroyed a set of
extremely valuable tools by making them public may be correct, but is also
subject to twin rebuttals. First, the remaining tool kit is rather full;
and, second, our adversaries probably always assumed that we listened to
everything that we could. Indeed, they probably think that we still are,
irrespective of what any new laws and regulations may say.

What of Snowden's revelations about foreign spying? Although creating some
frictions with allies, I suspect that the changes will be even less
because there was little that the United States was doing that was really
unusual, something that foreign leaders knew despite the domestic
political incentives that led them to express outrage. It is not quite
clear why Snowden revealed these activities if his concern was with
domestic spying, however.

This brings me to my final point: I have spoken of ‘the Snowden
revelations’, but he delegated the choice of what to make public to the
journalists to whom he entrusted the secrets. It is as though Snowden did
not trust his own judgment, and perhaps he was correct; here he displayed
a degree of self-awareness unusual for either a traitor or a hero.

No other country in Europe has reacted more drastically to the Snowden
affair than Germany. The NSA issue has rested on the front burner of
national affairs for over a year now and there are no signs of it going
away soon. The German press serves an almost daily diet of reports on
Uncle Sam's sneaky ways of gathering vast amounts of Germany's private,
political, and business data. Edward Snowden became an instant hero. No
one wished to discuss the moral and political downside of his betrayal of
government secrets.

When Chancellor Angela Merkel failed to calm things down and to deflect
attention away from the ‘NSA scandal’, she gave the go-ahead to establish
a parliamentary commission of inquiry into US spying operations against
‘innocent Germans’ and their political leadership (including Merkel's
mobile phone). Several German ministers were dispatched to Washington ‘to
clarify matters’ and to negotiate (in vain as it turned out) a ‘no-spying
agreement’. Then, in early May 2014, Merkel herself paid a visit to
President Obama, officially to discuss the Ukrainian crisis but NSA was no
doubt mentioned as well. This was viewed on the German side, and
presumably by Obama, as a gesture of ‘let's be friends again’.

Yet the Snowden affair continues to burden German-American relations.
Pessimists even think it could wreck them for good. Not since the missile
crisis of the 1980s has the German-American partnership had so little
public support among Germans. To be sure, most of the harsh criticism of
NSA snooping comes from the far left, particularly from neo-communists,
who have a strong electoral foothold in the former communist parts of
Germany. But the harm done by the NSA affair reaches very far into the
mainstream of the political spectrum, including Chancellor Merkel's own
political party.

The second observation concerns Snowden's allegations that the
Bundesnachrichtendienst (BND), as well as Germany's domestic intelligence
services, were (and still are) part of the NSA snooping systems: sharing
data, internet tracking software, and the rest of NSA's tool box and
collection methods. While the German services claim to work 100 per cent
according to what is allowed by German laws, the public seems to have
little confidence in such assurances. In sharp contrast to the public
support given by President Obama to the NSA, the Merkel government has
left German intelligence services to fight for themselves. No public
support. No backing. No public statement to explain what few people seem
to know, namely, that intelligence exchanges across national borders are a
matter for the political masters to decide, not for the services
themselves.

Thirdly, there is the political fallout in relation to cyber security.
While neighboring France and Britain have launched huge programs to build
up reactive and proactive cyber capabilities, Germany has merely a small
coordinating unit which is so weak that even the budget control office has
recently criticized its inefficiency. The Snowden leaks should have
alerted Germany to her massive deficits in cyber security; but the
opposite is likely to happen because the political leadership will not
inject more money into intelligence.

Finally, we need to look at Germany's role in the fight against Islamist
terrorist and Wahhabis movements in the Middle East (Syria and Iraq in
particular), in Central Asia (think of the imminent withdrawal from
Afghanistan), and in parts of Africa, to say nothing about the ongoing
Iranian nuclear issue and the Ukrainian crisis. Germany will now be much
less willing to follow American leadership in tackling any of these
issues. Her willingness to deploy her military forces in any of the
foreseeable crisis scenarios has sharply declined. Her programs to improve
the mobility and firepower of her crisis intervention forces are held in
limbo. The ongoing debates about developing or buying armed drones are
unlikely to produce any results, because armed intervention is now even
more strongly associated with ‘American imperialism’ and its ugly hidden
face, the NSA. Between them, NSA and Snowden have badly damaged
transatlantic relations and the worst part of it may still lie ahead.

The security implications of Edward Snowden's leak of enormous amounts of
classified information remain unclear and indeed may never be fully known.
However, the political fallout has been extensive and continuing.
Regardless of the effect, much of the commentary has concentrated on
speculation regarding Snowden's motives. Indeed, this attention itself is
not independent of political motivation; if Snowden's motives were pure,
he can more easily be seen as a brave patriot seeking to reveal heinous
hidden aspects of US national security policy. If they can be shown to be
more personally or financially motivated, then he can more easily be
dismissed as a traitorous coward who betrayed national trust and placed
lives and careers at risk. Of course, the motive and the consequences need
not be logically linked, and yet they often remain intertwined in public
and political perception.

Yet the greatest likelihood is more complex. Specifically, it is almost
impossible upon observation not to categorize Edward Snowden as a
prototypical narcissistic personality disorder, in which a person given to
excessive vanity becomes preoccupied to the point of obsession with his or
her own personal prestige and importance. As long as everyone goes along
with telling them how wonderful they are, everything is fine; but once
someone pricks the person's narcissistic wound, they commonly lash out
against those who fail to sufficiently appreciate them, by their own
estimation, by trying to demonstrate their superior value and power.
However, his actions may nonetheless have inspired an important public
debate about the rights to privacy and the limits of surveillance in a
democratic society that were perhaps long overdue in the wake of the
extensive expansions of government infiltration into the lives of private
citizens with the Patriot Act, which was passed quickly after the
devastating attacks of 9/11.

Two narratives have dominated in the discussion of Snowden, as nicely
detailed by Jay Epstein in the Wall Street Journal on 9 May 2014. The
first casts him as a whistle-blower who made enormous personal sacrifices
to expose corrupt American government surveillance programs. This is the
version which has received the most popular attention and endorsement. The
second suggests that Snowden was perhaps too clever by half, and that he
was a spy who engaged in espionage for foreign governments for personal
profit. After all, why else would the Russians take him in and pay his
bills? Never mind that he may be useful to Putin as a post hoc annoyance
in a period of escalating international tension, displayed in places such
as Crimea unrelated to Snowden. But a third narrative appears more
plausible, if less dramatic. Snowden is a narcissist who seeks attention
and did not get as much of it as he wanted in his relatively low level job
(or at least lower than he claimed). From this perspective, he did what he
did to get exactly what he got: a lot of acclaim and attention. From this
vantage point, it is noteworthy that every time his story almost begins to
fall off the front page, he gives a new interview or engages in some new
activity that brings him front and center to the national stage once
again.

Snowden's behavior is compared, by those who support him, to similar
actions taken by such heroic figures as Daniel Ellsberg, who released the
Pentagon Papers to Seymour Hersh at the New York Times in 1971. These
papers documented the extensive history of American involvement in
Vietnam, and in particular revealed secret incursions and bombings in
Cambodia and Laos that had not been revealed either by Congress or the
American public. Ellsberg was charged with conspiracy, espionage, and
theft of government property, although all of these charges were dropped
in the course of a subsequent investigation. Importantly, Ellsberg was an
extremely credible scientist. His doctoral dissertation in Economics from
Harvard in decision science examined the phenomenon of ambiguity aversion.
He demonstrated the ways that individual choice violates the expectations
of utility theory, a relationship eponymously named The Ellsberg Paradox.
As important as his release of the Pentagon Papers may have been in the
history of American foreign policy, Ellsberg's most important and enduring
contribution to society is likely to derive from the many consequences of
his delineation of the paradox named after him.

Another analogous case can be found in the example of Joe Darby, the young
reservist stationed in Iraq who revealed the disks that held images of
American soldiers engaged in torture against prisoners in the Abu Ghraib
prison in 2004. After encountering resistance to his concerns within the
chain of military command, Darby turned the disks over to Seymour Hersh,
who by then had moved to the New Yorker magazine. The images horrified the
American public and led to investigations and examinations of the torture
and abuse at the prison. Darby was ostracized by his community for his
actions, although he did not suffer any legal consequences.

Snowden's case is unlike the Ellsberg or Darby examples, both of which
represent genuine whistle-blowing in their attempt to expose secret
government malfeasance ostensibly conducted on behalf of the American
public without their knowledge. While some of what Snowden stole remains
sealed, the vast majority of what has been revealed does not relate to
government surveillance. But this does not mean that his motive was
espionage. Rather, his motive can parsimoniously be explained as resulting
from his unrelenting and unquenchable desire for attention, regardless of
the kind or source.

The debate surrounding the release of Snowden's leaked documents has
inspired a healthy discussion about the limits of government surveillance
on domestic citizens, although frankly most Americans are only too willing
to offer up unlimited forms of personal information and data on a wide
variety of social media platforms, and seem less concerned than perhaps
they should be about the extent and capacity of government interference in
their public and private lives. However, good effects need not necessarily
derive from noble motives. Ironically, although it is perhaps too snide to
suggest, the likely true significance of Snowden's motives, like that
which surrounds public shooters, rests in the revelation of the inadequacy
of mental health care in this country.

Three challenges face the intelligence communities of the democracies.
First, the challenge of meeting insistent demands for secret intelligence,
for example to counter the threats to cyber security and provide
actionable intelligence about the identities, associations, location,
movements, financing, and intentions of dictators, terrorists, insurgents,
and cyber-, narco-, and other criminal gangs. Secondly, the challenge of
harnessing the ability in the digital age to supply intelligence about
suspects, for example by accessing communications, social media, and
digital databases of personal information. Thirdly, the challenge of
achieving that intelligence mission whilst applying the safeguards needed
to ensure ethical behaviour in accordance with modern views of human
rights, including respect for personal privacy.

Like some elementary experiment in mechanics, the resultant of these three
forces ­ of demand, of supply, and of public attitudes ­ will determine
the future path of our intelligence communities. Into that force field
blunders the idealistic Edward Snowden, the information campaigners Laura
Poitras and Glenn Greenwald, plus a posse of respectable journalists. In
the United States, the federal government's collection and storage by the
NSA of the Americans' digital metadata of US citizens, secretly authorized
under s.215 of the Patriot Act, is exposed.⁸ President Obama is obliged to
admit to the programme;⁹ and Congress is currently legislating to regulate
it.

Snowden might therefore be regarded by some as a US whistle-blower,
although he didn't exhaust his remedies before going public and he didn't
have to steal so many secrets (including British intelligence secrets)¹⁰
to make his main case. So perhaps he scores half a point as a US
whistle-blower.

Now consider the UK. It turns out there is no secrecy scandal over
interception by GCHQ. The independent UK Interception Commissioner ­ who
was one of the nation's most senior judges ­ reports to Parliament that
everything GCHQ does is properly authorized, and legally properly
justified, including under Article 8 of the European Human Rights
convention regarding personal privacy.¹¹ But the media allege that GCHQ is
using its links to the NSA to evade the constraint of UK law. Not true,
says the Commissioner. It turns out that the media have not explained that
the UK uses a strict legal definition of ‘communications data’, not the
much looser concept of ‘metadata’ obtained from internet and social media
use.¹² Accessing browsing history or other detailed digital metadata,
whether from US or UK sources, is for British analysts equivalent to
accessing ‘content’ and they have to have the relevant UK warrant.

Furthermore, the media fall into the category error that has crept into
much of the recent public debate of not distinguishing bulk access by
computers to the internet ­ which the US and UK certainly do have ­ and
so-called ‘mass surveillance’, which they do not conduct. Mass
surveillance implies observers, human beings who are monitoring the
population. As the UK Interception Commissioner confirms, no such mass
surveillance by takes place by GCHQ; it would be unlawful.

Thus, Snowden has not exposed any British wrongdoing ­ the only
justification for whistle-blowing that involves betraying serious
confidences. A Vodaphone global survey credits the UK with having the best
practice in interception safeguards.¹³ Snowden himself said: ‘Not all
spying is bad. The NSA and the rest of the US intelligence community is
exceptionally well positioned to meet our intelligence requirements
through targeted surveillance ­ the same way we've always done it ­
without resorting to the mass surveillance of entire populations’.
Targeted surveillance is only what is conducted by the UK intelligence
agencies. They will continue to need to examine individual cases for which
there are warrants; for example, jihadist extremists from the UK who are
fighting in Syria and Iraq and who may return to the UK as hardened and
dangerous terrorists.

Finally, we have to recognize the damage that Snowden's revelations have
done to our global security. The newspapers may have redacted the stories
they printed to remove obvious dangers; but they did not understand where
the real sensitivities lay in exposing the nature of the coverage of the
authorities, allowing terrorists and criminals to alter their behaviour ­
as they undoubtedly have ­ and in compromising the relationships with
internet companies, making it harder to obtain targeted intelligence on
key suspects.

It has long been an accepted principle that, as CIA analyst Ray Cline once
put it: ‘There is no way to be on top of intelligence problems unless you
collect much more extensively than any cost-accounting approach would
justify … You might think you could do without most of what is collected;
but in intelligence, in fact, as in ore-mining, there is no way to get at
the nuggets without taking the whole ore-bearing compound’.¹⁴ The Snowden
leaks detail how this principle has been applied in twenty-first century
US intelligence collection and expose the ethical tensions it can
generate.

The Cold War environment in which Ray Cline operated and the contemporary
one are different in key respects. The contemporary intelligence
environment is scarred by the experience of the 9/11 terrorist attacks;
haunted by the belief that collecting more information would have resulted
in better dot-connection and prevention. While 9/11 provided the impetus
to collect more, technological advances since then have made the goal of
gathering all electronic communications seem feasible. Encouraged by a
security industry with such close ties to the intelligence/security
bureaucracy that they are not always easily distinguishable, it has
emerged as a realistic aim. However, the Snowden leaks expose the extent
to which this wide-ranging surveillance, while solely justified by
reference to the potential terrorist threat, has had much broader targets;
step forward Angela Merkel. The prevalence of diplomatic and economic
espionage aimed at third countries and international organizations is a
striking feature of the leaks.

This points us towards the fact that the picture of global electronic
communications collection provided by Snowden is not complete; it is
extensive but one-dimensional. The complete picture would be more complex
and multi-dimensional, featuring a wide range of actors engaging in a
global electronic ‘great game’ ­ competing to collect information to the
extent that their self-definitions of national security, alliance
commitments, and technological capabilities make necessary or feasible.
Only snapshots of this wider picture emerge from the leaks; for example,
that Israel is regarded as the third most aggressive intelligence service
acting against the US, and that France targets the US Department of
Defense. Nevertheless, we should not lose sight of the existence of this
broader ‘great game’.

Public trust has been a notable casualty of the Snowden revelations ­
trust in technology providers, in intelligence providers, and in
government ­ and greater levels of resistance can be expected from
providers and individuals in future. This, in turn, reflects the
democratic deficit exposed by Snowden. There is a risk that aspects of
intelligence are treated as a disfiguring birthmark on the democratic body
politic, carefully concealed and never discussed. Yet, informed public
debate is essential to democratic legitimacy here. This debate needs to
consider what ‘security’ means and involves before it can consider the
options for providing it and the price worth paying for it; in particular,
whether attempted universal collection justifies the invasion of personal
space that it involves. The conclusion of the President's Review Group on
Intelligence and Communications Technologies that, contrary to the view
offered by the NSA, this global dragnet approach to collection ‘was not
essential to preventing [terrorist] attacks’¹⁵ reinforces the need for
public debate.

Admiral Stansfield Turner once said that the ethics of intelligence rested
on whether actions could be defended before the public if exposed.¹⁶
Reactions to the Snowden leaks suggest that mass electronic surveillance
has failed the ‘Turner Test’. But the Snowden revelations also expose the
limits of the ‘Turner Test’ itself. The practices revealed were linked to
understandings of national security; but the targets were also
international, and it is international as well as national public opinion
that has been galvanized as a result, both at mass and elite levels. The
decision of Germany's federal prosecutor to open an investigation into the
Merkel phone-tapping is simply one of the most prominent expressions of
this. In the twenty-first century, intelligence actions clearly need to be
justifiable in normative terms beyond the water's edge. In this regard, it
has been suggested that principles of proportionality and last resort
should, and do, provide ethical guides for intelligence. The Snowden
revelations suggest, however, that these guides have been of only limited
relevance, if any, with regard to electronic intelligence collection.

Edward Snowden will be tried in many ‘courts’ and ultimately in the most
merciless ­ the court of history. The verdict on Snowden will depend on
the milieu and may well prove elastic, depending on what more we learn
about his motivations, his illicit gathering of information from sensitive
US intelligence databases, his sharing of such information with media
groups and possibly others, evidence of harm done and intelligence
capabilities compromised, and a complex weighing of the balance between
motivation, methods, harm, and the public interest.

Whatever badge we stick to Mr. Snowden (and his media collaborators) may
in itself not matter very much, and certainly will be dwarfed by the issue
that he has called our attention to. That issue is the practice, and
future, of global electronic surveillance by state intelligence agencies.
The ultimate verdict(s) regarding Edward Snowden the man will pale in
significance alongside the verdict(s) on global surveillance.

Of course, the verdict on global SIGINT surveillance is not yet in. Once
rendered, it will neither be absolute nor universal. But it is easy to
predict where the verdict will be made, who the verdict will affect, and
what its broad contours should be. The verdict on the future of global
surveillance will be shaped by American responses and will have to embrace
significant change, because the status quo has been made untenable and
because any prohibitionist stance would be dangerous and, in a global
sense, ultimately self-defeating. Because this is America and not, say,
China or Russia, the verdict on the future of global surveillance after
Snowden will be hammered out in a democratic political space. Because this
is America, a world power, the verdict will have to take account of the
sensitivities of close allies and friends. Because this is America, with a
vested interest in sustaining the American export of ‘soft power’, it will
also have to pay attention to the American image, at home and abroad.

American-led global electronic surveillance will have to be curtailed.
This will be the real ‘Snowden verdict’. The United States has lost
credibility, especially around its defense of the principles of a free and
open internet. The United States has angered its friends, in Europe and
elsewhere. American businesses in the vast telecommunications and
info-data sectors have or will lose global customers. At home in the
United States, the Snowden revelations have stirred fierce debate around
the protection of privacy and the legitimacy of surveillance.

The degree to which American-led global surveillance will be curtailed,
and the precise measures to be taken, remain to be seen, although a start
has been made, under pressure, by the Obama administration. What needs
greater clarity are the principles around which the recalibration of
global surveillance should take place.

Four such principles should be uppermost:

necessity,

proportionality,

legitimacy, and

privacy.

Figuring out the necessity of global electronic surveillance means a
better aligning of signals intelligence capabilities with legitimate,
top-of-the-list security threats. It means much greater attention being
paid to signals intelligence tasking, and much closer monitoring of
signals intelligence payoffs. It means a system of targeted global
electronic surveillance which is not driven by technological capabilities
nor by misleading haystack metaphors and ‘collect it all’ machismo.

Proportionality represents an additional layer of calculation to
complement necessity. Getting proportionality right means creating a
system in which the risks and rewards of any particular intelligence
collection effort can be carefully weighed not just in the context of
possible outcomes, but also in the post-Snowden light of ‘what if it comes
out?’ Some intelligence games are just not worth the candle.

Legitimacy might be the hardest principle for intelligence agencies to
swallow. But the NSA and its partners have to recognize that their
long-term viability rests not in their machines and algorithms, but in
their ability to convince their own publics that what they do is not just
legal (especially when legal can be hard to pin down) but also right.

Privacy might be the most surprising principle of all. But the Snowden
revelations have re-awakened a deep concern in democratic polities about
over-reaching surveillance and have intersected with a renewed concern, in
the age of digital living and ubiquitous information flows, with privacy
protections. Future global electronic surveillance will have to pay much
greater attention to domestic (and maybe even international) privacy
rights.

As the United States grapples with post-Snowden changes, those states such
as Canada, whose own signals intelligence agency, the Communications
Security Establishment Canada, is closely tied to the NSA and its
surveillance practices, though the ‘Five Eyes’ partnership, watch and
wait. For Canadians, this is both a hopeful and a distressing reality.
Hopeful in the sense that we can anticipate a kind of recalibration of
US-led global surveillance which might accord with our own principles and
interests; distressing in that it reveals that Canada, enmeshed in its
dependency on the NSA, and suffering problems of endemic secrecy,
inadequate laws, poor accountability, hands-off political leadership, and
an ill-informed public, cannot make independent headway in coming up with
our own, applied Snowden verdict on global surveillance.

Notes

1 David E. Sanger, ‘Sky Isn't Falling After Snowden, N.S.A. Chief
Says’, New York Times, 30 June 2014, p.A1.

2 ‘Edward Snowden, Whistle-Blower’, New York Times, 2 January 2014,
p.A18.

3 David M. Barrett, ‘Secrecy, Security, and Sex: The NSA, Congress,
and the Martin-Mitchell Defections’, International Journal of Intelligence
and Counterintelligence 22/4 (2009) pp.699­729.

4 Transcript, Interview of Snowden by Brian Williams, NBC News, 28
May 2014 < http://www.twitlonger.com/show/n_1s203lc>

5 ‘N.S.A. Breached Chinese Servers Seen as Security Threat’, New
York Times, 22 March 2014, p.A1.

6 ‘Edward Snowden, Whistle-Blower’, New York Times, 2 January 2014,
p.A18.

7 Albert Hirschman, Exit, Voice, and Loyalty (Cambridge: Harvard
University Press 1970).

8 The programme was secretly authorized under s.215 of the Patriot
Act. The Congressional Oversight Committee was given a misleading answer
by DNI Jim Clapper when Senator Wyden asked him directly whether such
activity was carried out.

9 The President's statement of 17 January 2014 on his Review of
Signals Intelligence can be found at
http://www.whitehouse.gov/the-press-office/2014/01/17/remarks-president-review-signals-intelligence.

10 He is known to have stolen 58,000 highly classified intelligence
documents from GCHQ, the equivalent of the US NSA, that were shared with
the NSA.

11 Sir Anthony May, Annual Report, 8 April 2014 http://www.iocco-uk.info

12 A GCHQ analyst can find out under the rules for communications data
that the suspect accessed Google ­ but not the questions asked; that the
suspect accessed Amazon but not what was purchased; the email address to
which an email was sent but not what is in the title of the message and
not the message itself; if they want to access more detailed metadata
whether from US or UK sources they have to have the relevant Secretary of
State warrant.

13 Vodaphone, Law Enforcement Disclosure Report 2014
http://www.vodafone.com/content/dam/sustainability/2014/pdf/operating-responsibly/vodafone_law_enforcement_disclosure_report.pdf.

14 From Cline's Secrets Spies and Scholars (1976), quoted in Charles E.
Lathrop, The Literary Spy (New Haven, CT: Yale University Press 2004)
p.41.

15 The President's Review Group on Intelligence and Communications
Technologies, The NSA Report: Liberty and Security in a Changing World
(Princeton, NJ: Princeton University Press 2014) p.57.

16 Stansfield Turner, Secrecy and Democracy: The CIA in Transition
(Boston, MA: Houghton Mifflin 1985) p.178.