This week, Edward Snowden’s written testimony to members of the European Parliament was released. In it, he addresses a number of questions put to him by MEPs.
As Mr Snowden points out in his opening statement, his testimony does not disclose “new information about surveillance programs.”
Given the particular conditions of his asylum in Russia and his own insistence that the determination of what is in the public interest be left to the journalists handling his material, Mr Snowden limited his testimony to “information regarding what responsible media organizations have entered into the public domain.”
While thus not revealing anything that isn’t already in the public domain, the testimony addresses and recalls some important points that have been raised since June last year, some of which I will attempt to summarize and comment on in the following.
Basic human rights and unimpressive success
Importantly, Mr Snowden’s testimony emphasizes again, that “suspicionless surveillance programs of the NSA, GCHQ, and so many others that we learned about over the last year endanger a number of basic rights which in aggregate, constitute the foundation of liberal societies.”
This cannot be stated often and emphatically enough. It has been acknowledged time and again that a balance needs to be struck between civil liberties and fundamental rights, and national security. It has also been shown, on numerous occasions, that this balance is now dangerously off-kilter.
Civil rights and liberties have been eroded in favour of programmes of mass surveillance which, “despite extraordinary political pressure to do so, no western government has been able to” justify by “showing that such programs are necessary.”
To the contrary, Mr Snowden reminds us again of the “unimpressive success” rate of these programmes, citing the White House’s Privacy and Civil Liberties Oversight Board, which, investigating one of these programmes, “determined that [it] was not only ineffective — they found it had never stopped even a single imminent terrorist attack — but that it had no basis in law.”
Bluntly put, “they discovered the United States was operating an unlawful mass surveillance program, and the greatest success the program had ever produced was discovering a taxi driver in the United States transferring $8,500 dollars to Somalia in 2007.”
Plausible deniability – circumnavigating the law
“The surest way for any nation to become subject to unnecessary surveillance is to allow its spies to dictate its policy.”
More worrying than that is that the USA are (obviously) not the only country that operates programmes of questionable legality and usefulness. And while it may be arguable that some spying is beneficial and necessary for national security, any form of surveillance should be conducted within and respecting of the legal frameworks operating in a given country. Yet, surveillance agencies and legislators seem to have been hard at work to make legislation suit their purposes – and not just legislation in their own countries either.
“One of the foremost activities of the NSA’s FAD, or Foreign Affairs Division,” Mr Snowden writes, “is to pressure or incentivize EU member states to change their laws to enable mass surveillance. Lawyers from the NSA, as well as the UK’s GCHQ, work very hard to search for loopholes in laws and constitutional protections that they can use to justify indiscriminate, dragnet surveillance.”
Similarly, “the priority of the overseers is not to assure strict compliance with the law and accountability for violations of law, but rather to avoid […] “damaging public debate.””
So, when it comes to surveillance, legislation is apparently no longer intended to protect the rights of a country’s citizens but to ensure that these citizens don’t realize that their rights are being violated.
According to Mr Snowden, there “are indications of a growing disinterest among governments for ensuring intelligence activities are justified, proportionate, and above all accountable.”
This lack of interest in accountability becomes conspicuous, for example, in the reactions to Mr Snowden and the journalists who have been reporting on these programmes: some government officials are still refusing to engage in much-needed debate or reform of their surveillance activities. More than that, they have called for an end to publication and even criminal investigation of Mr. Snowden and his “accomplices”.
And even when debate is being demanded, like in the UK most recently by shadow home secretary Yvette Cooper, it is still “accepted” that “the leaks […] have damaged national security while highlighting legitimate concerns about privacy in the internet age.”
Repeat: there is no evidence of any damage done to national security.
A lack of interest in accountability and attempts at legislation that facilitates avoiding public debate is one thing. But it gets worse.
“Once the NSA has successfully subverted or helped repeal legal restrictions against unconstitutional mass surveillance in partner states, it encourages partners …to gain access to the bulk communications of all major telecommunications providers in their jurisdictions… it is very difficult for the citizens of a country to protect the privacy of their communications, and it is very easy for the intelligence services of that country to make those communications available to the NSA –even without having explicitly shared them.”
This apparent ease with which communications can be made available without being actively shared – which would be unlawful – gives governments a certain amount of “plausible deniability”, i.e. the ability to deny that what they are doing is unlawful.
They are not, after all, spying on their own citizens or allowing a foreign power to spy on their citizens with their knowledge or consent – they are merely sharing data in a roundabout way. While arguably within the law, this is merely telling a half-truth and the result is the same: the mass collection and subsequent sharing of vast amounts of communication from people not suspected of any wrongdoing.
So while “[s]urveillance against specific targets, for unquestionable reasons of national security while respecting human rights, is above reproach. Unfortunately, we’ve seen a growth in untargeted, extremely questionable surveillance for reasons entirely unrelated to national security.”
Examples of this include the capturing of “bulk data that is clearly of limited intelligence value and most probably violates EU laws” under GCHQ’s “light oversight regime” and the subsequent trading of “that data with foreign services without the knowledge or consent of any country’s voting public.”
This forcefully came to public attention recently when it emerged that GCHQ has been spying on Yahoo webcams, screencapping, amongst other things, people’s nude pictures.
I heard there was a secret court…
Mr Snowden is not wrong when he states that “[t]here is no argument that could convince an open court that such activities were necessary and proportionate, and it is for this reason that such activities are shielded from the review of open courts.”
As mentioned previously, accountability does no longer seem to be the major concern of law makers or overseers. Rather, the emphasis is on limiting “damaging” public debate about the agencies’ powers.
Yet “better oversight,” Edward Snowden maintains, “could have prevented the mistakes that brought us to this point.”
A point where NSA and GCHQ were able to undermine internet encryption programmes, effectively working “against the public interest by weakening critical infrastructure.” Edward Snowden in his testimony correctly labels this “an action taken against the public good.”
It should be obvious that “[s]ecret laws and secret courts cannot authorize unconstitutional activities by fiat, nor can classification be used to shield an unjustified and embarrassing violation of human rights from democratic accountability.” If this is done, it undermines democracy.
Therefore, it is in the public interest to investigate these programmes, to discuss them and decide their value.
Writes Mr Snowden: “If the mass surveillance of an innocent public is to occur, it should be authorized as the result of an informed debate with the consent of the public, under a framework of laws that the government invites civil society to challenge in open courts.”
That’s what proper oversight and accountability mean.
Economic espionage and surveillance of activists
If you were targeted on the basis of your political beliefs, would you know? If they sought to discredit you on the basis of your private communications, could you discover the culprit and prove it was them? What would be your recourse?
Edward Snowden asks MEPs in his testimony. And further:
Try to imagine the impact of such activities against ordinary citizens without power, privilege, or resources. Are these activities necessary, proportionate, and an unquestionable matter of national security?
More than that, it has little to do with national security or the fight against terrorism. Neither does industrial espionage which, according to Mr Snowden, is very much alive:
“[Y]es, global surveillance capabilities are being used on a daily basis for the purpose of economic espionage […] NSA had successfully targeted and compromised the world’s major financial transaction facilitators, such as Visa and SWIFT.” They have also spied on “Petrobras, an energy company”.
And as if this kind of economic spying wasn’t enough, let us remind ourselves that “[r]eport after report has revealed targeting of G-8 and G-20 summits. Mass surveillance capabilities have even been used against a climate change summits.”
The fact that this really has very little to do with national security is reflected in how “governments have shifted their talking points from claiming they only use mass surveillance for “national security” purposes to the more nebulous “valid foreign intelligence purposes.”
I don’t think Mr Snowden is wrong in suggesting that “this rhetorical shift is a tacit acknowledgment by governments that they recognize they have crossed beyond the boundaries of justifiable activities.”
Blowing the whistle
So then, to recap: what has been revealed over the past months, based on the documents provided by Edward Snowden, is that intelligence agencies around the world, most notably the NSA and GCHQ, are operating potentially unlawful mass surveillance programmes in the name of national security but with very limited success and hardly any value to national security.
To keep the programmes intact and prevent “damaging public debate”, oversight has been kept firmly within the framework of secretive intelligence courts that deal in “classified information”, defying any attempt for these surveillance practices to be challenged in an open court or scrutinized by an informed public.
What Edward Snowden’s revelations have made clear, however, is that public debate is badly needed and, in many cases, also wanted.
Instigating this debate is one of the main reasons Edward Snowden has repeatedly given for his decision to blow the whistle on these programmes.
Sadly, this has resulted in his being persecuted, indicted and exiled.
Once again, as part of his testimony, Mr Snowden commented on why he chose to leak the documents he obtained from the NSA to journalists rather than make an official complaint.
“[R]eporting serious concerns about the legality or propriety of programs is much more likely to result in your being flagged as a troublemaker than to result in substantive reform.”
According to Mr Snowden, raising concerns results in “two kinds of responses.”
Firstly, “well – meaning but hushed warnings not to “rock the boat,” for fear of the sort of retaliation that befell former NSA whistleblowers like Wiebe, Binney, and Drake.” Thomas Drake, for one, is an outspoken supporter of Edward Snowden. You can read some of his thoughts on the treatment of whistleblowers in the US here.
Secondly, “similarly well – meaning but more pointed suggestions, typically from senior officials, that we should let the issue be someone else’s problem.”
Clearly, neither Mr Snowden, nor Mr Wiebe, Binney, Drake or many others were satisfied that these issues should be left to be someone else’s problem. For this, they have paid a high price.
Whistleblower protections, Edward Snowden’s case has once again revealed, are less than satisfactory and, according to Mr Snowden, they have not improved recently.
Sadly, whistleblowers who are afforded little protection under US law cannot hope to find support or protection from many other governments around the world, as Mr Snowden’s case has shown.
Writes Mr Snowden: “European governments, which have traditionally been champions of human rights, should not be intimidated out of standing for the right of asylum against political charges, of which espionage has always been the traditional example.”
Sadly, we have witnessed that precisely such intimidation has been shaping the decisions of European governments over the past months. Edward Snowden should have been offered asylum a long time ago, yet it was only recently that the European Parliament dropped his asylum bid.
As Jan-Phillip Albrecht, MEP from Germany, told Ars Technica: “European lawmakers are afraid that if one member state does grant Snowden asylum or some other type of similar legal protection […] President Obama will pull out of the upcoming US-EU summit […] or take further action that could harm individual member states’ interests.”
It is equally concerning that EU members states can be thus intimidated and that President Obama would go to such lengths to intimidate.
“[A]n unlikely, last-ditch effort to grant Edward Snowden protection against criminal prosecution and/or extradition to the United States”, that is to be considered in the European Parliament next week is therefore just that: unlikely to meet with much success.
It is a sad thing that someone who has initiated a debate that has been widely acknowledged as necessary, and who has now provided testimony to the EU about extensive mass surveillance that is putting the very security of the global internet at risk, should receive so little support.
Similarly, it is sad that over the past months, journalist and other supporters of Mr Snowden have been subject to attempts at intimidation.
Let us be clear:
“Journalism is not a crime, it is the foundation of free and informed societies, and no nation should look to others to bear the burden of defending its rights.”
What Mr Snowden’s testimony and the very fact that he was asked to testify show us once again is that our rights are under threat and that our governments are realizing this too.
It is now time our governments started defending these rights. And this absolutely includes Mr Snowden’s rights and those of other whistleblowers.
It is about time a strong statement was made that EU governments will not allow themselves to be intimidated and to encourage future whistleblowers by showing them that they will not be left out in the rain for making the public aware of what is in their interest to know.
Pushing for strict legislation to curb mass surveillance would be one such statement. Insisting on meaningful oversight would be another. As would granting asylum to Edward Snowden and reforming whistleblower protection.
Sadly, the latter seems to “require an extraordinary act of political courage” that none of our governments are capable of.
Unfortunately, Mr Snowden’s willingness to help and inform, as evident once again in his testimony, seems to have earned him little help in improving his own situation. Wouldn’t it be great if our governments found their courage in time to change that?