Snowden and Safety

by Wayne McCormack

The question has been asked whether Edward Snowden should be considered a hero or a villain. The situation is filled with ambiguities and it would be most appropriate if Snowden would return to the U.S. voluntarily to clear up some of the confusion surrounding his actions. It is quite possible that he is not guilty under the Espionage Act charges, although he certainly violated contractual agreements. By running for asylum, he is not behaving in classic civil disobedience style.

While he may have done a service to an uninformed public, what he disclosed is not particularly surprising to those who have followed the NSA issues for the last decade, and it certainly would not be surprising to an active knowledgeable anti-American group. Certainly the well-organized groups (Al Qaeda in Iraq, Hezbollah, Hamas, AQAP, and the like) will find nothing surprising in what he has disclosed. Even the loosely affiliated followers of jihadi rhetoric will hardly be surprised to find that the U.S. has been building electronic databases to help track their communications.

It will be extremely difficult to make out a case of espionage against him. Most of the statutes in that realm apply to “defense information” in “time of war” and require “intent that it be used to the injury of the United States” or “for the benefit of any foreign government to the detriment of the United States.” As Glenn Greenwald has pointed out, Snowden did not sell any information or give it directly to any foreign government – instead he went public in classic whistle-blower fashion.

On the other hand, he clearly violated his employment contract and related obligations to the Government, some of which might constitute a reasonably minor crime. To qualify as an exercise of civil disobedience, his defiance should include standing up in a court of law to face the consequences. At the time of one massive U.S. misstep, the Vietnam War, hundreds of young men went to jail rather than submit to the draft. And protesters around the world are facing violent reaction from their governments in pursuit of increased freedom.

What Snowden disclosed is a massive metadata mining operation. I am not a computer geek so don’t pretend to understand all the ramifications of the NSA operations. And we still don’t know all of them. We do know that metadata (calling patterns, internet patterns, and the like) are collected and mostly sorted without personal identification or the content of communications. Snowden claims that content of U.S. citizens at home has also been available to listeners, and it would be nice to know the exact dimensions of the NSA operations so that we could better assess the civil liberties implications of the program under the Obama Administration.

In his testimony before Congress, General Keith Alexander, stated that he “would rather be sitting here debating this point than trying to explain how we failed to prevent another 9/11.” That is very close to saying he would rather give up personal liberties than pursue other approaches to peaceful conflict resolution.

Government officials claim that nobody can read my e-mail or listen to my phone conversations, but I know the capability exists and I don’t know how rigorous are the controls to prevent it. Snowden’s presence in the U.S. to defend himself would help open the public record on these systems. My privacy is not particularly important now but history shows repeatedly than power over information is ultimately abused for political gain. Bottom line? If the bad guys cause us to change our laws to spy on our own citizens, then they have won.

Wayne McCormack is the E. W. Thode Professor of Law at the University of Utah S.J. Quinney College of Law. Professor McCormack teaches Constitutional Law, Counter-Terrorism, International Criminal Law, Torts, and Civil Procedure.