Two years ago this week, Edward Snowden dropped the proverbial bomb on the National Security Agency.
The former contract infrastructure analyst for the NSA, former system administrator for the CIA, former counterintelligence trainer for the DIA (Defense Intelligence Agency
) shared a trove of classified documents with several media outlets, revealing the breadth and depth of NSA’s surveillance of the American people.
There was much sound and fury from the White House, from lawmakers on Capitol Hill and from members of the intelligence community.
Snowden’s revelations were “damaging to the United States,” said President Obama. They were an “act of treason,” said Dianne Feinstein, who in 2013 was chairman of the Senate Intelligence Committee. He should be “hanged by his neck until he is dead,” said former CIA director James Woolsey.
Well, what a difference two years make.
This week, the Senate overwhelmingly approved the USA Freedom Act, which, as the Electronic Frontier Foundation noted, “marked the first time in 30 years that both houses of Congress have placed real restrictions and oversight on (NSA’s) surveillance powers.”
Sen. Feinstein voted for it. President Obama promptly signed the measure into law, pronouncing that it at once “protects civil liberties and our national security.” And Woolsey hadn’t anything to say.
The new limits placed on the Surveillance State amount to vindication for Snowden. Indeed, had he not gone public, we, the American people, would have been blissfully unaware of the extent to which Big Brother is watching us.
We would not have learned about NSA’s so-called Section 215 telephony metadata program, which secretly – and without search warrants – collected the phone records of practically every American.
Neither would we have learned about other programs – PRISM, Dishwire, Boundless Informant, XKeyscore, ad infinitum (no, that’s not one of the code names) – which allowed NSA to surreptitiously monitor our emails, Web browsing histories, file transfers, text messages, contacts, credit card information, geolocation information and devil knows what else.
The USA Freedom Act reins in NSA’s bulk collection of phone records under Section 215 of the 2001 Patriot Act – one month after a federal appeals court ruled that the 14-year-old law went far beyond the parameters Congress originally authorized.
But, by no means have the gathering threats to the Fourth Amendment right against unreasonable searches been comprehensibly addressed. Additional protections need to be codified.
Snowden offered a few suggestions during an appearance last year – by telepresence robot – at TED 2014 in Vancouver, where he was joined at one point in the proceedings by Sir Tim Berners-Lee, who famously invented the World Wide Web, and who thinks Snowden a “hero.”
Snowden endorsed Berners-Lee’s idea of a new Magna Carta for the Internet to counteract what Sir Tim has previously lamented as “the growing tide of surveillance and censorship” of the Web.
He also gave a shout out to Kevin Bankston and Ashkan Soltani, who co-authored an article published last year in the Yale Law Journal in which they proposed what they called a “Fourth Amendment Equilibrium Adjustment” to “balance out the rapid technology-based expansion of the government’s power to collect information about its citizens.”
They devised what has come to be known as the Bankston-Soltani principle: “If the cost of the surveillance using the new technique is an order of magnitude (10 times) less than the cost of the surveillance without using the new technique, then the new technique violates a reasonable expectation of privacy.”
In such cases, the Fourth Amendment provides grounds to “impose new legal costs to replace a lost structural right and thereby restore equilibrium.”
Had the Bankston-Soltani principle, or something similar, been part of the Patriot Act, we might have enhanced national security while still protecting civil liberties.
And we might never have heard of Edward Snowden.