When Edward Snowden first came forward as the source of leaked documents detailing the surveillance programs of the National Security Agency, he maintained that his sole motivation was “to inform the public as to that which is done in their name and that which is done against them.” Since that first leaked FISA court order compelling Verizon Business to prospectively turn over the metadata of its customers, we’ve gradually learned just what he meant.
With each new revelation, one fact is thrown into sharp relief: the agency is gathering and retaining increasing amounts of data on the electronic communications activities of American citizens, not just foreign intelligence targets. For example, as the New York Times reported last week, the NSA authorized agency analysts to conduct, as part of a pilot program, “large-scale graph analysis on very large sets of communications metadata without having to check foreignness” when pursuing a trail of communications related to a foreign intelligence target. That means if an American citizen has contact with a foreigner who is an intelligence target of the NSA, her metadata may be subject to surveillance without warrant, regardless of her status as an American citizen.
Whether or not one thinks such activities are justified in the name of national security, it’s difficult to deny that the contours of the NSA’s dragnet revealed thus far have raised serious questions. The breadth of the NSA’s programs has caused alarm even among some members of Congress who approved the laws interpreted to justify these programs. And the revelations have spawned a number of lawsuits, including cases brought by civil liberties groups like the Electronic Privacy Information Center, the Electronic Frontier Foundation, and the American Civil Liberties Union, as well as by private technology companies like Microsoft, Google, and Yahoo. At the very least, it’s clear that many reasonable people think the NSA has exceeded the limits imposed on it by the Constitution. And let’s not forget, there are even more revelations to come.
The Whistleblower Protection Act (WPA) protects disclosures made by federal employee with the reasonable belief that the information demonstrates “any violation of any law, rule, or regulation,” or “gross mismanagement, gross waste of funds, and abuse of authority, or a substantial and specific danger to public health or safety.” Intelligence employees, however, are exempt from the protections afforded to other federal personnel under the WPA. The protections that exist for intelligence personnel, under the Intelligence Community Whistleblower Protection Act, construct a pathway for employees to report potential abuses internally, but fall short of offering protection from retribution. And if the case of former NSA executive Thomas Drake is any guide, internal reporting may be less than adequate as an avenue for reviewing practices of questionable legality.
Make no mistake: Edward Snowden is a whistleblower. What makes the absence of protection in this case even more troubling is that if Edward Snowden faced trial in the United States, legally speaking his conviction would depend in no way on the presence or absence of altruistic motivations. The Espionage Act criminalizes, among other things, disclosure to unauthorized persons of information related to the national defense. One of the charges filed against Snowden, violation of 18 U.S.C. § 793(d), requires the communication of such information be made willfully, and that the individual charged “has reason to believe [the information] could be used to the injury of the United States or to the advantage of any foreign nation.” The statute does not prescribe and courts have not entertained any public interest defense in these cases. As the law has been applied, Snowden’s actions almost certainly meet the requirements of the violations with which he has been charged, regardless of his motivation (or, for that matter, of the harm his revelations have caused, which some NSA analysts have characterized as muted).
The international community has embraced public interest defenses for such crimes. In June 2013, a coalition of civil society groups, academics, and other experts in freedom of speech and media (including four special rapporteurs) issued the Global Principles on National Security and Freedom of Information, also known as the Tshwane Principles. The principles state that criminal penalties should apply only to specific, narrow categories of information clearly identified by the law, and permit those charged to raise a public interest defense. Such a defense should defeat the criminal penalty if “the public interest in disclosure of the information in question outweighs the public interest in non-disclosure” as assessed according to a number of criteria, including “the extent and risk of harm to the public interest caused by the disclosure.”
Intelligence personnel are often entrusted with sensitive information which, if released, would put American lives at risk. And, of course, not all unauthorized disclosures are worthy of protection. But refusal to acknowledge the circumstances surrounding a particular disclosure ignores the important role intelligence whistleblowing can play in strengthening democracy through increased transparency.
The conversation Edward Snowden started is an important one, and is far from over. When this episode ends, it may well be the case that the public’s interest in learning the information he released justified his actions. Or not. The question we must answer, though, is shouldn’t a jury be able to consider that when assigning him criminal culpability?