TBA Law Blog


Posted by: Gary Shockley on Sep 1, 2014

Journal Issue Date: Sep 2014

Journal Name: September 2014 - Vol. 50, No. 9

 By Luke Harding | Vintage | $14.95 | 345 pages | 2014

In its recent decision in Riley v. California,[1] the U.S. Supreme Court held that the police must secure a warrant before searching the contents of an arrested suspect’s cellular phone. Ironically, that unanimous reaffirmation of Fourth Amendment principles comes only a few short months after the revelations of former National Security Agency contractor Edward Snowden that the government has been engaged in bulk collection of electronic data on millions of Americans, as well as intercepting the contents of communications of foreigners. In his new book The Snowden Files, Guardian journalist Luke Harding attempts to make sense of the startling revelations and chaotic flight of the world’s best-known whistleblower.

Edward Snowden would be an unlikely casting choice for a thriller about America’s largest spy agency, more Boo Radley than James Bond. A high school dropout, Snowden became a computer networking specialist and secured jobs with the CIA in Switzerland and Japan and as an NSA contractor at its Pacific listening post on Oahu. It was there, Snowden claims, that he became concerned about the massive collection of electronic data on Americans and others, feeling that Director of National Intelligence James Clapper had lied to Congress about the scope of its activities and that national security concerns prevented effective public or Congressional oversight. An admirer of libertarian Ron Paul, Snowden felt that the NSA was violating the Constitution with impunity. He began to copy top secret electronic files that would trigger the debate on security and privacy that he felt was precluded by secrecy laws.

Contacting documentary filmmaker Laura Poitras in Germany and blogger Glenn Greenwald in Brazil anonymously, Snowden presented himself as a “senior” American intelligence official looking to make a clean breast. Despite considerable initial skepticism, and some slapstick efforts to download encryption software, the three eventually met in Hong Kong. Snowden brought along four laptops filled with highly sensitive data taken from NSA databases, including information shared by the NSA’s British counterpart, Government Communications Headquarters (GCHQ). The reporters quickly knew that they had a story that would dwarf the diplomatic cables and logs released by Bradley Manning and Wikileaks.

There soon followed an amazing series of blockbuster stories on the Guardian’s web site, along with publication by its journalistic partners the New York Times and Pro Publica. Among the disclosures were the first opinion of the Foreign Intelligence Surveillance Court (FISC) to be made public, authorizing bulk collection of metadata. In addition, Snowden’s documents showed that the NSA cooperated with telecommunication and tech giants to collect data on U.S. citizens as well as foreigners, tapped undersea fiber optic cables to intercept communications, installed “back doors” into encryption software, and tapped the cell phones of German Chancellor Angela Merkel and Brazilian President Dilma Rousseff. The strictures of the Fourth Amendment and Foreign Intelligence Surveillance Act seemed to have been left far behind.

One of the more interesting aspects of Harding’s book is his account of the difficulties encountered by the Guardian in the U.K. Incensed at the release of GCHQ data, British authorities cajoled and threatened the Guardian under the restrictive U.K. press laws. Eventually, Guardian staff destroyed hard drives containing the Snowden materials under the watchful eyes of GCHQ “hobbits” in the basement of the paper’s offices. The information, however, was also possessed by the Guardian’s U.S. bureau and by its recently recruited partners, The New York Times and investigative journalism web site Pro Publica. Enjoying the protection of the First Amendment, those American sources continued to review and publish the Snowden disclosures.

As for Snowden himself, the tale became one of evasion and exile. Allowed to leave Hong Kong by Chinese authorities notwithstanding a U.S. indictment and request for extradition, Snowden made it as far as Moscow before his passport was revoked and he ran out of options. Stranded at Sheremetyevo airport for days and guided by the dubious advice of Julian Assange and Wikileaks, Snowden eventually was granted temporary haven in Russia.

Author Luke Harding, who was expelled from Moscow for his writing on the Kremlin and Vladimir Putin, has few illusions about Putin’s motivation in granting Snowden’s asylum request. He leaves open the question of whether Snowden is willingly or inadvertently cooperating with the Russian Federal Security Service (FSB) but clearly sees no quick end to his indefinite exile.

If Snowden’s goal was to ignite a debate on security and privacy in the post-9/11 world, he has certainly succeeded. A presidential panel has issued a call for reform of intelligence-gathering, Congress has acted to curb the NSA’s powers, Europe has begun to shy away from U.S. companies and infrastructure, tech and telecom companies have complained bitterly of lost profits and credibility from following FISA court orders, and China and Russia have accused America of hypocrisy in denouncing cyber-spying by others.

Harden’s book, while self-evidently a quickie paperback designed to expand on the Guardian stories, does a good job of synthesizing the Snowden disclosures and story in a comprehensive and coherent fashion. While neither a deep inquiry into the right of privacy in the age of terrorism nor an exploration of the many legal issues presented, The Snowden Files is a good primer on the many revelations from Snowden’s stolen secrets and a sobering reminder of the reach of governments in the digital age.

Note

  1. Riley v. California, No. 13-132, 13-212 (U.S. June 25, 2014).

 


GARY C. SHOCKLEY is a shareholder with the Nashville office of Baker, Donelson, Bearman, Caldwell & Berkowitz PC and a member of the Tennessee Bar Association Board of Governors.