“The bare beginning of reform”: two years on, Snowden’s work “has only begun”

When I think about the future, I think about the fact that there is still so much to be done. You know my work is not finished. In fact, I would argue that it has only begun.”

– Edward Snowden, May 2015

Two years ago, the Guardian began a series of revelations based on documents provided by the former NSA contractor Edward Snowden. Since then, journalists from the New York Times, the Washington Post, DER SPIEGEL, the Guardian and The Intercept, based on the information provided by Snowden, have revealed the extensive and not always legal spying practises of the NSA, the British GCHQ and, most recently, the German BND.

In a recent op-ed in the New York Times, Snowden praised the progress that has been made since he first brought the extensive spying conducted by the intelligence agencies to public attention. Still, he also cautioned that:

Though we have come a long way, the right to privacy… remains under threat. Some of the world’s most popular online services have been enlisted as partners in the N.S.A.’s mass surveillance programs, and technology companies are being pressured by governments around the world to work against their customers rather than for them. Billions of cellphone location records are still being intercepted without regard for the guilt or innocence of those affected… Metadata revealing the personal associations and interests of ordinary Internet users is still being intercepted and monitored on a scale unprecedented in history: As you read this online, the United States government makes a note.”

Meanwhile,

Spymasters in Australia, Canada and France have exploited recent tragedies to seek intrusive new powers despite evidence such programs would not have prevented attacks. Prime Minister David Cameron of Britain recently mused, “Do we want to allow a means of communication between people which we cannot read?” He soon found his answer, proclaiming that “for too long, we have been a passively tolerant society, saying to our citizens: As long as you obey the law, we will leave you alone.””

In Germany, journalist Kathrin Schmid noted that “reform” over the past two years has been three-fold: the German government has recently brought back mass data retention and strengthened the surveillance powers of its foreign and domestic intelligence agencies.

Therefore, while we have been able to witness surveillance reform in the US that gives grounds for cautious hope, other governments have regressed rather than progressed. We have a long way to go before the threat of turning democratic societies into police states dominated by “reaction and fear” rather than “resilience and reason”.

US Senate ends bulk collection of phone records

In the week leading up to the second anniversary of the first Snowden revelations, “[t]he US Senate… passed a bill to end the bulk collection of millions of Americans’ phone records, ushering in the country’s most significant surveillance reform since 1978” the Guardian reported on Wednesday.

The law is the USA Freedom Act, it will, as President Obama has put it, “strengthen civil liberty safeguards”, and, as John Cassidy points out in the New Yorker, it wouldn’t exist if it hadn’t been for Edward Snowden. Its name seems ironic when you consider that despite the fact that the Freedom Act only exists because of Snowden, the US government is still threatening him with a loss of his liberty for a substantial amount of time should he return to the US.

What is more, while the passage of the Freedom Act is widely considered “a milestone”,

[b]arring the N.S.A. from collecting and holding the phone records of hundreds of millions of Americans…[t]he legislation leaves on the books a law from 1986 that allows the government to read any e-mail that is more than six months old, and it doesn’t change Section 702 of the 2008 FISA Amendments Act, which the N.S.A. has used to justify collecting not just metadata, such as phone records, but the actual contents of communications, such as e-mails and online chats.”

Dan Fromkin in The Intercept calls the passing of the USA Freedom Act a

Small Step for Post-Snowden Reform, Giant Leap for Congress”,

noting that while

the Freedom Act represents the single greatest surveillance reform package since the 1970s… that’s a low bar.”

Snowden agrees that much more needs to be done, as he told the Guardian in a recent interview:

This is only the bare beginning of reform. There are still many bulk collection programmes out there… that are even more intrusive. What it says is that bad laws are not forever and if we work together, we can change them.”

While reform in the US, all things considered, is not that substantial, it is a start. And what’s happening in the US seems almost a luxury when compared to countries like Germany and the UK where both investigation into the questionable conduct of the agencies and surveillance reform are either sluggish or even non-existent.

The UK: new government keen to bring in the Snoopers’ Charter

In the UK, where the government ordered the destruction of the Guardian’s laptops in 2013, and “[p]ublic support for Snowden… was tepid”, the Conservative Party have recently been re-elected with an overall majority. I have previously commented on why I think this may prove to be a disaster. It certainly looks to be disastrous for privacy. Prime Minister Cameron’s Tories lost no time announcing that – now that there was no coalition partner to block it – they would urgently bring back the Draft Communications Data Bill, known to its critics as the Snoopers Charter and, beyond that, to expand existing surveillance powers for the GCHQ.

It doesn’t seem to concern anyone very much that at the start of this year, the British Investigatory Powers Tribunal ruled that “the sharing between Britain and the US of electronic communications intercepted in bulk was unlawful” for seven years. In a different but related matter, the Conservatives are also considering scrapping the Human Rights Act and withdrawing from the European Convention on Human Rights. It seems that two years after Snowden, David Cameron’s government indeed has its heart set on continuing its, as Snowden has put it, “extraordinary departure from the traditional operation of liberal societies”.”

PGP founder Phil Zimmerman’s worry that “[f]uture governments that come to power might not be [as] nice [as British society believes the current one to be], and if they inherit a surveillance infrastructure then they could use this to create an incumbency that cannot be changed” cannot be disregarded. Even more worrying, however, is the question how far into the future we actually have to look to see that happening. The way things are going now, perhaps not that far.

Given the limited interest in the UK in any debate surrounding surveillance in the two years since Edward Snowden stepped onto the world stage, Tim Berners-Lee’s call for Britons to “fight the government’s plans to extend the country’s surveillance powers, and act as a worldwide leader for promoting good governance on the web” seems like a rather optimistic and very long shot, even though, ironically, British intelligence officials secretly agree that

Snowden – love him or hate him – had changed the landscape; and that change towards transparency, or at least “translucency”, and providing more information about intelligence activities affecting privacy, was both overdue and necessary.”

Germany: mass data retention is back

Meanwhile, Germany is reeling from its own recent surveillance scandal, involving the cooperation of its foreign intelligence agency the Bundesnachrichtendienst (BND) with the NSA and what looks like several occasions on which the German government, nicely put, stretched the truth a little.

I wrote about much of that in one of my previous posts. Since then, it has emerged that while the German government told the German people in 2013 that they were negotiation a No-Spy-Agreement with the USA, it was in fact clear at the time that the USA would not agree to anything like that.

Speaking on NSA reform in the US, Snowden recently told the Guardian:

The idea that they can lock us out and there will be no change is no longer tenable. Everyone accepts these programmes were not effective, did not keep us safe and, even if they did, represent an unacceptable degradation of our rights.”

Sadly, the idea that government can lock out its citizens and make no changes seems very much tenable to the Merkel administration. In addition to allegedly lying about a No-Spy-Deal and their exact knowledge of the questionable conduct of their own BND in its relationship with the NSA, Merkel and her minions have also recently brought back mass data retention in Germany, even though the European Court of Justice struck it down in 2014. Previously, in 2010, Germany’s own constitutional court had declared mass data retention unconstitutional.

So, while Germans may be somewhat more vocal in their criticism of their government than Britons, the German administration seems about as impervious to that criticism – or in fact any backlash from the Snowden revelations – as the British government.

Snowden vindicated but still unable to go home

Edward Snowden remains in Russia where he was given asylum in 2013. Despite recent reforms that vindicate Snowden’s revelations, the US is not considering dropping the charges against him or offering a plea deal that would allow him to return home to the US. As Snowden is being charged, among other things, with violating the Espionage Act,

if he were to stand trial, he could not tell the jury what his whistleblowing has accomplished…Snowden would not even be able to utter the word “whistleblower” in court, let alone tell a jury why he did what he did.”

US government spokesman Josh Earnest recently “refused to comment on whether Snowden could be allowed to employ a whistleblower defence if he chose to return voluntarily, something his supporters have argued is impossible under current Espionage Act charges.”

The Guardian editorial board argues correctly that the argument over whether Edward Snowden is a traitor or a whistleblower should be over, now that

Capitol Hill has felt moved to right certain wrongs he exposed… He deserves a pardon at home, or else asylum in western Europe, for revealing truths that US lawmakers have recognised required a response.”

Sadly, none of that looks likely to happen. It seems that Jessica Schulberg is right when she writes in the Huffington Post that “[i]t’s hard to give credit to someone you want imprisoned.” And apparently, it’s equally hard for international governments to give asylum to someone who others want imprisoned, despite the fact that you could argue, as James Ball does, that

[o]f Snowden and the NSA [and, one might add, the GCHQ and Germany’s BND], only one has so far been found to have acted unlawfully – and it’s not Snowden.”

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