Snowden Says NSA Is Lying When It Claims He Didn't Raise Concerns Through The Proper Channels

from the blow-that-whistle dept

In a new interview with Vanity Fair magazine, Ed Snowden seems to be hitting back at nearly every bogus claim made by his critics. He kicks it off by responding to the claims that if he were a real whistleblower, he should have just gone through "official channels." He claims that he did that and nothing happened. In fact, he suggests that Congress ought to ask the NSA about that.

The N.S.A. at this point not only knows I raised complaints, but that there is evidence that I made my concerns known to the N.S.A.'s lawyers, because I did some of it through e-mail. I directly challenge the N.S.A. to deny that I contacted N.S.A. oversight and compliance bodies directly via e-mail and that I specifically expressed concerns about their suspect interpretation of the law, and I welcome members of Congress to request a written answer to this question [from the N.S.A.].

How about the silly claim that he took 1.7 million documents? As we've mentioned this number keeps going up. First it was 50,000 documents. Then 70,000. Then 1.5 million. And the latest is 1.7 million. And all of it seems based on a faulty assumption that every document Snowden has ever "touched" he took with him. That is almost certainly false. And, as we've also noted in the past, Snowden has made it clear that he no longer has any of the documents. He reiterated that to Vanity Fair:

Snowden cautions about some of the numbers that investigators have publicized, especially the 1.7 million figure, which, he tells Vanity Fair, is “simply a scare number based on an intentionally crude metric: everything that I ever digitally interacted with in my career.” He adds, “Look at the language officials use in sworn testimony about these records: ‘could have,’ ‘may have,’ ‘potentially.’ They’re prevaricating. Every single one of those officials knows I don’t have 1.7 million files, but what are they going to say? What senior official is going to go in front of Congress and say, ‘We have no idea what he has, because the N.S.A.’s auditing of systems holding hundreds of millions of Americans’ data is so negligent that any high-school dropout can walk out the door with it?’ ”

“I know exactly how many documents I have,” Snowden continues. “Zero.”

There's more in the publicly released summary, and apparently the full story (not yet released) will have even more. Of course, it won't stop the NSA's defenders from making the same old claims again and again without proof.

Filed Under: ed snowden, lies, nsa, proper channels, surveillance, whistleblowing

Telcos Dodge Suit Claiming They Overcharged For Wiretaps, But At Least They'll Have To Pay Their Own Legal Costs

from the not-so-hard-justice dept

AT&T and Verizon's ultra-close relationship with government surveillance efforts have been profitable in innumerable ways. Obviously being a loyal patriot means you'll have a better chance of grabbing multi-billion dollar military and government communications contracts. Carriers also pass on most of the costs of outfitting their network for easier surveillance (like those live fiber splits AT&T whistleblower Mark Klein exposed) directly to you, the consumer. Lastly as we've discussed more than a few times whenever pricing sheets leak, they make a pretty penny on law enforcement wiretap requests. Maybe a bit too pretty.

Back in 2009, former New York Deputy Attorney General John Prather filed a lawsuit on behalf of the U.S. government, accusing Verizon, AT&T, Sprint and Qwest (now CenturyLink) of overcharging federal, state and city governments for services under CALEA. Prather, who helped lead the NY AG's Organized Crime Task Force from 2002 to 2008 as part of thirty years as a prosecutor, was intimately familiar with wiretap procedure and spent years in charge of invoices for wiretap provisioning. Prather claimed telcos had aggressively been price gouging law enforcement for some time, jacking up prices year over year without any sensible explanation why some wiretaps should cost in some cases $50,000 to $100,000 each.

Prather claims he filed a complaint with the FCC in 2004, who did nothing about it. Prather's lawsuit was dismissed a few months back (pdf) after the court claimed his insights were conjecture in that he didn't provide enough first hand evidence of fraud. That degree of proof was required because, according to telco lawyers, Prather technically couldn't file a whistle blower lawsuit under the False Claim Act and claim he himself was the "original source of the information" -- because he filed the original complaint while working for the government.

As a tiny win however, the court this week stated that phone company lawyers couldn't prove that Prather was filing the lawsuit simply to harass the phone companies, and as such they're be required to at least pay their own legal costs related to the case:

"Furthermore, the phone companies "fail to show that Relator's action was 'clearly vexatious' or 'brought primarily for purposes of harassment' as there is no evidence that relator pursued this litigation merely to annoy or embarrass defendants," the ruling states. "Conversely, Relator asserts that he brought this action 'in an attempt to bring to light the fraud of the telecommunications carriers, and to help insure that the Law Enforcement Agencies would not be hindered in their investigation of crime.'"

Understand that Verizon and AT&T have a long and proud history of taking all manner of subsidies, tax breaks or other incentives for services never delivered, and when they do deliver, over-charging like any good unaccountable government contractor. The combination of excellent lawyers, an apathetic government afraid of taking on larger companies and the fact that phone companies are simply damn good at it -- has historically allowed them to get away with pretty much whatever they've wanted. Actually requiring the phone companies to pay their own lawyers may not not sound like much, but when AT&T and Verizon lawyers are involved, it's dramatically more than you'll usually see in cases like this.

Filed Under: john prather, telco, whistleblowing, wiretap
Companies: at&t, centurylink, qwest, sprint, verizon

Snowden's 'Proper Whistleblowing Channel' Finally Speaks And It's All Talking Points, Condescension And Smears

from the those-famous-'whistleblower-protections'-in-action dept

Well, it seems like we've heard an opinion on Ed Snowden from nearly everyone in the intelligence community, barring the rank-and-file. (Of course, we've been assured by "unnamed sources" and various named officials that they're all extremely irate that they've been portrayed as the collective eyeball staring through the national peephole. Curiously, we've been offered no proxy opinion on the multiple abuse incidents...)

Finally, the Inspector General of the NSA has weighed in on the Snowden situation, and his comments are indistinguishable from any other die-hard NSA defender's.

During a day-long conference at the Georgetown University Law Center, Dr. George Ellard, the inspector general for the National Security Agency, spoke for the first time about the disclosures made by former NSA contractor Edward Snowden.

In addressing the alleged damage caused by Snowden’s disclosures he compared Snowden to Robert Hanssen, a former FBI agent and convicted spy who sold secrets to the Russians.

It seems impossible for anyone connected with the national security framework to even acknowledge that Snowden's intentions might be exactly what he's repeatedly stated they are: to inform the public about the NSA's pervasive surveillance efforts. He's never compared to other whistleblowers. Instead, the NSA Defense Squad compares him to infamous spies. To his credit, Ellard admits the only real comparison between the two is the large number of documents taken.

But then Ellard adds this, which not only plays up the Snowden=spy equivalent, but also exposes a bit more of the national security mindset.

“Hanssen’s motives were venal, for cash perhaps or perhaps they were psychological, a desire to play a very, very dangerous game that is therefore very, very exciting. At the end of his career, Hanssen had almost 30 years in intelligence and counterintelligence. He knew exactly what was of value to his spy handlers and he was very specific in choosing documents to steal. He knew how to control his handlers better than they knew how to control him."

“Snowden, in contrast, was manic in his thievery, which was exponentially larger than Hanssen’s. Hanssen’s theft was in a sense finite whereas Snowden is open-ended, as his agents decide daily which documents to disclose. Snowden had no background in intelligence and is likely unaware of the significance of the documents he stole,” Ellard suggested.

It is quite possible that Snowden grabbed a bunch of documents without vetting them for "public interest," but to call his search efforts "manic" is just a cheap way to downplay both Snowden's technical skill and the agency's astounding lack of internal security.

What's more troubling is how Ellard views the press. Ellard calls the journalists Snowden gave documents to "agents," showing that he (and other national security insiders) view the world through espionage-tinted glasses. Journalists are now "agents," supposedly acting at the behest of their "handler," Edward Snowden. It's a smear thinly disguised as SIGINT shop talk -- a small-minded attempt to portray reporting leaks as a dark and nasty business.

What makes all of this more remarkable than the normal NSA defensive efforts is the fact that Ellard was Snowden's "proper channel."

Ellard has been the NSA’s inspector general since 2007. In this capacity he has not spoken in a public forum before so that made what he said additionally significant. Had Snowden made the decision to report his concerns through approved NSA channels it would have been through Ellard’s office.

The route Snowden supposedly should have taken runs right through Ellard's office. And what Ellard would have given him in exchange for his concerns was a recitation of the NSA's talking points.

Ellard was asked what he would have done if Snowden had come to him with complaints. Had this happened, Ellard says would have said something like, “Hey, listen, fifteen federal judges have certified this program is okay.” (He was referring to the NSA phone records collection program.)

This offer to explain the (alleged) constitutionality of the program may have meant something if Ellard had made this statement at any point before June 2013. Delivering it now -- with all the inside information that's been uncovered since then -- is remarkably tone deaf. It shows that NSA officials still have no idea how to approach potential whistleblowers. Those in that position actually still think delivering stale talking points will somehow dissuade someone who's truly shocked by the vast power and reach of the agency.

If you think this statement indicates Ellard's incredibly out of touch with the reality of the situation, the next assurance effort he offers removes all doubt.

“Perhaps it’s the case that we could have shown, we could have explained to Mr. Snowden his misperceptions, his lack of understanding of what we do. If not, I would have made the Senate and House Intelligence Committees open to him. Given the reaction of by some members of that committee, he would have found a welcome audience."

Really? Mike Rogers? Dutch Ruppersberger? Dianne Feinstein? This is the "welcome audience" Snowden would have faced. They, like Ellard, would have rubbed his boyish head and told him not to worry about all these lawful programs he simply didn't "understand." And then they would have sent him on his way. (And, most likely, reported him to his superiors and redundantly suggested Ellard open an internal investigation.)

The "proper channels" wouldn't have given Snowden anything other than a swift ride to the "EXIT" door and some threats about just how much of a living hell the NSA would make his life if he passed any of his knowledge on to the general public. Ellard's attitude towards Snowden shows how much hostility awaits those who find themselves unable to be good NSA company men/women. Following proper channels means being greeted with condescension, cliches and a lifetime of suspicion.

Filed Under: edward snowden, george ellard, nsa, privacy, whistleblowing

Sen. Schumer Is Completely Wrong; Snowden Would Be Barred From Arguing His Case At Trial

from the you'd-think-congress-would-know-the-law dept

It seems every week a new member of Congress goes on a Sunday talk show and incorrectly states that if Edward Snowden came back to the United States to stand trial, he would be able to tell his side of the story to a jury and argue he is a whistleblower. This is factually not true, and it's time for members of the media to start pushing back at those who suggest it is.

This week it was Senator Chuck Schumer on ABC's "This Week." Here's what Schumer said, according to the New York Times:

Mr. Schumer said...[Snowden] should return to stand trial and face the consequences of his actions. Such a trial, the senator said, could be enlightening for the country.

...

He said it was unclear how much the broad metadata gleaned by the National Security Agency had helped the fight against terrorists; how much damage Mr. Snowden had, in fact, done to intelligence efforts; and precisely how the data were used.

“All of this could come out in a trial; it would be beneficial for the country to have the discussion,” Mr. Schumer said. “So, running away, being helped by Russia and China, is not in the tradition of a true civil disobedience practitioner.”

In reality, none of that information would be heard by a jury, if prior Espionage Act cases against leakers are any guide. Judges have ruled evidence of showing intent to inform the public, benefits of the leaks, and lack of damage to national security is inadmissible. We made this point just two weeks ago, but it seems worth repeating since it seems as though members of Congress opining on Snowden's legal options do not know how the law works. Here are how four of the most recent Espionage Act leak cases have turned out:

• John Kiriakou, the former CIA officer who was the first to go on-the-record with the media about waterboarding, pled guilty in his Espionage Act case last year partially because a judge ruled he couldn’t tell the jury about his lack of intent to harm the United States.

• In the ongoing leak trial of former State Department official Stephen Kim, the judge recently ruled that the prosecution “need not show that the information he allegedly leaked could damage U.S. national security or benefit a foreign power, even potentially.” (emphasis added)
• In the Espionage Act case against NSA whistleblower Thomas Drake (which later fell apart), the government filed two separate motions to make sure the words "whistleblowing" or "overclassification" would never be uttered at trial.

• In Chelsea Manning's trial this past summer, Manning's defense wanted to argue she intended to inform the public, that the military was afflicted with a deep and unnecessary addiction to overclassification, and that the government’s own internal assessments showed she caused no real damage to U.S. interests. All this information was ruled inadmissible until sentencing. Manning was sentenced to thirty-five years in jail—longer than most actual spies under the Espionage Act.

At this point, it's time for the media to start pushing back on government officials suggesting Snowden should tell his story to a jury, when caselaw says he would be barred from doing so. The New York Times is aware of this fact, as they mentioned it in another article published Sunday about the chances of Snowden receiving clemency. But in their story about Schumer's comments, they let his false statement go uncorrected.

It's also time for Congress to start debating the merits of using the Espionage Act on the sources of journalists. If Sen. Schumer thinks that Snowden should be able to tell all of the above information to a jury, we look forward to his amicus brief in a potential Snowden trial arguing that a whistleblower defense should be admissible. In the mean time, he and other members of Congress concerned about whistleblowers getting a fair trial should push for reform or repeal of the Espionage Act.

Republished from Freedom of the Press Foundation

Filed Under: chuck schumer, ed snowden, espionage act, whistleblowing

If Snowden Returned To US For Trial, All Whistleblower Evidence Would Likely Be Inadmissible

from the pernicious-law dept

There seems to be a new talking point from government officials since a federal judge ruled NSA surveillance is likely unconstitutional last week: if Edward Snowden thinks he's a whistleblower, he should come back and stand trial.

National Security Advisor Susan Rice said on 60 Minutes Sunday, “We believe he should come back, he should be sent back, and he should have his day in court.” Former CIA deputy director Mike Morell made similar statements this weekend, as did Rep. Mike Rogers (while also making outright false claims about Snowden at the same time). Even NSA reform advocate Sen. Mark Udall said, "He ought to stand on his own two feet. He ought to make his case. Come home, make the case that somehow there was a higher purpose here.”

These statements belie a fundamental misunderstanding about how Espionage Act prosecutions work.

If Edward Snowden comes back to the US to face trial, it is likely he will not be able to tell a jury why he did what he did, and what happened because of his actions. Contrary to common sense, there is no public interest exception to the Espionage Act. Prosecutors in recent cases have convinced courts that the intent of the leaker, the value of leaks to the public, and the lack of harm caused by the leaks are irrelevant—and are therefore inadmissible in court.

This is why rarely, if ever, whistleblowers go to trial when they’re charged under the Espionage Act, and why the law—a relic from World War I—is so pernicious. John Kiriakou, the former CIA officer who was the first to go on-the-record with the media about waterboarding, pled guilty in his Espionage Act case last year partially because a judge ruled he couldn’t tell the jury about his lack of intent to harm the United States.

In the ongoing leak trial of former State Department official Stephen Kim, the judge recently ruled that the prosecution “need not show that the information he allegedly leaked could damage U.S. national security or benefit a foreign power, even potentially.” (emphasis added)

The same scenario just played out in the Chelsea Manning trial this summer. Manning's defense wanted to argue she intended to inform the public, that the military was afflicted with a deep and unnecessary addiction to overclassification, and that the government’s own internal assessments showed she caused no real damage to U.S. interests. All this information was ruled inadmissible until sentencing. Manning was sentenced to thirty-five years in jail—longer than most actual spies under the Espionage Act.

If the same holds true in Snowden’s case, the administration will be able to exclude almost all knowledge beneficial to his case from a jury until he’s already been found guilty of felonies that will have him facing decades, if not life, in jail.

This would mean Snowden could not be able to tell the jury that his intent was to inform the American public about the government’s secret interpretations of laws used to justify spying on millions of citizens without their knowledge, as opposed to selling secrets to hostile countries for their advantage.

If the prosecution had their way, Snowden would also not be able to explain to a jury that his leaks sparked more than two dozen bills in Congress, and half a dozen lawsuits, all designed to rein in unconstitutional surveillance. He wouldn’t be allowed to explain how his leaks caught an official lying to Congress, that they’ve led to a White House review panel recommending forty-six reforms for US intelligence agencies, or that they've led to an unprecedented review of government secrecy. He wouldn't be able to talk about the sea change in the public's perception of privacy since his leaks, or the fact that a majority of the public considers him a whistleblower.

He might not even be able to bring up the fact that a US judge ruled that surveillance he exposed was ruled to likely be unconstitutional.

The jury would also not be able to hear how there’s been no demonstrable harm to the United States since much of this information has been published. And if the prosecution was able to prove there was some harm to the US, Snowden wouldn’t be able to explain that the enormous public benefits of these disclosures far outweighed any perceived harm.

Every American should be outraged that leakers and whistleblowers are being prosecuted under an espionage statute without ever having to show they meant to harm the U.S. or that any harm actually occurred. Given there are two dozen bills calling for the reform of the NSA in the wake of Snowden's revelations, there should also be reform of the Espionage Act, so it cannot be used by the government as a sword to protect itself from accountability.

Cross posted with permission, from Freedom of the Press Foundation

Filed Under: ed snowden, espionage act, evidence, trial, whistleblowing

Snowden's Negative Writeup By The CIA Was For Whistleblowing; Taught Him Why Going Through Proper Channels Gets Punished

from the interesting dept

You may recall there was a bizarre story last week in the NY Times, in which CIA officials had "leaked" to the NY Times that while in Geneva, back in 2009, Ed Snowden had been written up for "trying to break into classified computer files to which he was not authorized to have access." The CIA, though, quickly denied the story, and the whole thing seemed odd. The way it was written, it certainly suggested that Snowden was "hacking" around for questionable documents for years. However, in his new interview with the NYT's James Risen, Snowden explains what really happened, which actually tells a far more interesting story. It's not so much a story about Snowden trying to hack into machines to access data, but more a story of his first clear lesson in finding out what the intelligence community does to whistleblowers: because that's what he had done:

Mr. Snowden said that in 2008 and 2009, he was working in Geneva as a telecommunications information systems officer, handling everything from information technology and computer networks to maintenance of the heating and air-conditioning systems. He began pushing for a promotion, but got into what he termed a “petty e-mail spat” in which he questioned a senior manager’s judgment.

Several months later, Mr. Snowden said, he was writing his annual self-evaluation when he discovered flaws in the software of the C.I.A.’s personnel Web applications that would make them vulnerable to hacking. He warned his supervisor, he said, but his boss advised him to drop the matter and not rock the boat. After a technical team also brushed him off, he said, his boss finally agreed to allow him to test the system to prove that it was flawed.

He did so by adding some code and text “in a nonmalicious manner” to his evaluation document that showed that the vulnerability existed, he said. His immediate supervisor signed off on it and sent it through the system, but a more senior manager — the man Mr. Snowden had challenged earlier — was furious and filed a critical comment in Mr. Snowden’s personnel file, he said.

This is kind of interesting. It sounds like some CIA folks had tried to "leak" the story about the early reprimand in an attempt to make Snowden look bad, but now that a more complete version of the story is out, you quickly realize that it actually reinforces the reasons why Snowden knew that going through "official channels" for whistleblowing wasn't effective, and would likely just lead to him getting in trouble.

Filed Under: cia, ed snowden, geneva, whistleblowing

The NSA Has No Solution For The Real 'Snowden Problem' And It's Only Going To Get Worse

from the it's-called-reaping-what-you've-sewed,-mofos dept

The NSA still has no idea what Snowden took or what leak is going to be revealed next. It also seemingly has no contingency plan for the sort of situation any forward-thinking intelligence agency should realize is a distinct possibility.

It has made some moves, all mostly involving the closing of system barn doors, including end-to-end audits and the constantly hovering threat to eliminate 90% of its sysadmin staff. But no matter what methods and safeguards it implements, it's not going to eliminate the problem. As much as the revelations to date are only the "tip of the iceberg," Snowden himself is only the leading edge of a generational shift in thinking -- one that doesn't bode well for government entities that value their secrecy.

Charlie Stross provides some background on a generational shift in attitude towards loyalty and the long-held "company man" ideal, one that was fostered by previous generations and their "one job for life" outlook.

Generation X's parents expected a job for life, but with few exceptions Gen Xers never had that — they're used to nomadic employment, hire-and-fire, right-to-work laws, the whole nine yards of organized-labour deracination. Gen Y's parents are Gen X. Gen Y has never thought of jobs as permanent things. Gen Y will stare at you blankly if you talk about loyalty to their employer; the old feudal arrangement ("we'll give you a job for life and look after you as long as you look out for the Organization") is something their grandparents maybe ranted about, but it's about as real as the divine right of kings. Employers are alien hive-mind colony intelligences who will fuck you over for the bottom line on the quarterly balance sheet. They'll give you a laptop and tell you to hot-desk or work at home so that they can save money on office floorspace and furniture. They'll dangle the offer of a permanent job over your head but keep you on a zero-hours contract for as long as is convenient. This is the world they grew up in: this is the world that defines their expectations.

Snowden was never an NSA "employee" in the any true sense of the word. He was a contractor and yet the keys to the system were handed over to someone essentially on the outside. Snowden, unlike actual government employees, had no guarantees. He said he was making good money, but it wasn't permanent. When the renewal date rolled around, he may have been left with nothing but a job reference. The government buys loyalty with pension plans and decent health care, but being "set for life" is no longer the reality, not even in an arena recognized for its lifelong employment of underachievers and middle managers.

What happens if you're still trying to sell loyalty in a buyer's market? Bruce Schneier follows up on Stross' post.

Sure, it is possible to build a career in the classified world of government contracting, but there are no guarantees. Younger people grew up knowing this: there are no employment guarantees anywhere. They see it in their friends. They see it all around them.

Many will also believe in openness, especially the hacker types the NSA needs to recruit. They believe that information wants to be free, and that security comes from public knowledge and debate. Yes, there are important reasons why some intelligence secrets need to be secret, and the NSA culture reinforces secrecy daily. But this is a crowd that is used to radical openness. They have been writing about themselves on the internet for years. They have said very personal things on Twitter; they have had embarrassing photographs of themselves posted on Facebook. They have been dumped by a lover in public. They have overshared in the most compromising ways -- and they have got through it. It is a tougher sell convincing this crowd that government secrecy trumps the public's right to know.

This generation will more readily identify with the "crowd," despite its inherent lack of truly personal relationships. People have actively "stuck it to The Man" for years, but now it's the default, rather than limited to a small group of gutsy outliers.

The people who live very public lives as adjuncts of The Internet aren't easily swayed by boardroom talk or mandates delivered from corner offices. They're not nearly as naive as some pundits, especially those beholden to institutions of the past, have tried to portray them. They cling to a moral code, but it's a code nearly unrecognizable to anyone who entered the job market 40 years ago. This Time poll result, as pointed out by Peter Ludlow at the New York Times, shows the gap between not only this generation and generations past, but the difference between so-called "new media" and the aging journalistic institutions.

In broad terms, commentators in the mainstream and corporate media have tended to assume that all of these actors needed to be brought to justice, while independent players on the Internet and elsewhere have been much more supportive. Tellingly, a recent Time magazine cover story has pointed out a marked generational difference in how people view these matters: 70 percent of those age 18 to 34 sampled in a poll said they believed that Snowden “did a good thing” in leaking the news of the National Security Agency’s surveillance program.

This generation will be much less susceptible to the "banality of evil" that asks for nearly-blind loyalty. There are no more "company men" -- the kind that later justify malfeasance by explaining they were "just following instructions." (Ludlow excusably Godwinises his own post, quoting Hannah Arendt's "Eichmann in Jerusalem," in which the phrase "banality of evil" was conceived to explain how the right working atmosphere can result in horrific transgressions -- all compartmentalized by ordinary people performing their roles as cogs in the machinery.)

The ideal "company man" followed the "fundamental rules of corporate life," according to Robert Jackall's book, "Moral Mazes."

(1) You never go around your boss. (2) You tell your boss what he wants to hear, even when your boss claims that he wants dissenting views. (3) If your boss wants something dropped, you drop it. (4) You are sensitive to your boss’s wishes so that you anticipate what he wants; you don’t force him, in other words, to act as a boss. (5) Your job is not to report something that your boss does not want reported, but rather to cover it up. You do your job and you keep your mouth shut.

Those who break out of these confines are punished for their independent actions. Whistleblowing has always been received badly, both by the entity being exposed, and by others who still adhere to the above rules. This is also why the supposed "proper steps" whistleblowers are supposed to follow are completely useless. Systemic problems are rarely solvable by insiders, especially those higher up who have "bought in." Going outside is the only realistic choice.

The former United States ambassador to the United Nations, John Bolton, argued that Snowden “thinks he’s smarter and has a higher morality than the rest of us … that he can see clearer than other 299, 999, 999 of us, and therefore he can do what he wants. I say that is the worst form of treason.”

For the leaker and whistleblower the answer to Bolton is that there can be no expectation that the system will act morally of its own accord. Systems are optimized for their own survival and preventing the system from doing evil may well require breaking with organizational niceties, protocols or laws. It requires stepping outside of one’s assigned organizational role. The chief executive is not in a better position to recognize systemic evil than is a middle level manager or, for that matter, an IT contractor. Recognizing systemic evil does not require rank or intelligence, just honesty of vision.

Schneier says whistleblowing is the "civil disobedience of the information age." Stross is even more blunt, calling whistleblowing the natural progression of a new generation whose future has been sabotaged by generations who lived in an era when getting hired meant having a job for life and whose loyalty, right or wrong, was rewarded with pension plans and a functioning Social Security system. But those niceties have vanished and those stuck with the broken system and the bill of goods aren't happy.

[S]lighted or bruised employees who lack instinctive loyalty because the culture they come from has spent generations systematically destroying social hierarchies and undermining their sense of belonging are much more likely to start thinking the unthinkable.

So, who are these agencies going to turn to when hiring in order to prevent dozens of future Snowdens? Hiring from the human race is already problematic, given the inherent propensity of the average person to abuse granted power. The future certainly isn't promising. If nothing else, the agencies should embrace transparency simply because they realistically no longer have an option. The long run of opacity is over and no one's buying the justifications for secrecy, abuse and overreach, least of all those in search of a job.

Filed Under: chelsea manning, ed snowden, internet freedom, loyalty, openness, sharing, surveillance, whistleblowing

Edward Snowden Receives Whistleblowing Award

from the with-a-great-acceptance-speech dept

I'm still at a loss as to how people cannot call Ed Snowden a whistleblower, given just how many government abuses his leaks have revealed, and the wider discussion they have created (all without revealing anything that appears to be truly damaging -- just embarrassing). So it's good to see that he received a big whisteblower award in Germany over the weekend. Since he was (obviously) unable to attend in person, Jacob Appelbaum read his acceptance speech, opening it up with a very heartfelt discussion of the type of person that Snowden appears to be. It's worth watching.

You can read Snowden's acceptance speech as well. It's a quick read, but worth it. Here's a snippet:

My gratitude belongs to all of those who have reached out to their friends and family to explain why suspicionless surveillance matters. It belongs to the man in a mask on the street on a hot day and the women with a sign and an umbrella in the rain, it belongs to the young people in college with a civil liberty sticker on their laptop, and the kid in the back of a class in high school making memes. All of these people accept that change begins with a single voice and spoke one message to the world: governments must be accountable to us for the decisions that they make. Decisions regarding the kind of world we will live in. What kind of rights and freedoms individuals will enjoy are the domain of the public, not the government in the dark.

Yet the happiness of this occasion is for me tempered by an awareness of the road traveled to bring us here today. In contemporary America the combination of weak legal protections for whistleblowers, bad laws that provide no public interest defense and a doctrine of immunity for officials who have strayed beyond the boundaries of law has perverted the system of incentives that regulates secrecy in government. This results in a situation that associates an unreasonably high price with maintaining the necessary foundation of our liberal democracy – our informed citizenry. Speaking truth to power has caused whistleblowers their freedom, family, or country.

It is unfortunate that so many still cannot see what an amazing thing Snowden has done, and how it is clearly whistleblowing against government abuse.

Filed Under: awards, ed snowden, jacob appelbaum, whistleblowing

No, Snowden Didn't Have Any 'Other Avenues' To Blow The Whistle

from the let's-get-real dept

One of the key points that defenders of the NSA surveillance efforts keep making is that if Ed Snowden was so upset by what was happening he had "other avenues" to make his concerns known. Jennifer Hoelzer, whom you may recall from the post she wrote here about President Obama's supposed desire for an open debate concerning NSA surveillance, has penned an excellent piece for Slate, once again debunking the President. This time, it's about those supposed "other avenues" he had. As she notes, the problem is that anyone he took these concerns to would brush him off by claiming "it's legal." But the real concern the public has is the very fact that the NSA and so many of its defenders think this is legal.

If Edward Snowden had concerns that one of his co-workers was abusing the NSA’s surveillance authority to—for example—collect data on a former girlfriend or blackmail a member of Congress, he could have reported his concerns to a supervisor, and it’s highly likely that person would have done something about it.

But, contrary to what the president seems to think, Edward Snowden wasn’t concerned that the NSA was “improperly” collecting information on hundreds of millions of Americans. He was concerned that the government was collecting information on hundreds of millions of Americans. And how exactly does the president think Snowden should have raised that concern?

This is a key distinction that very few defenders of the NSA (and who are attacking Snowden) seem to grasp. The fact that the public -- and many in Congress -- have since spoken out in outrage over the program certainly suggests this is a key point. Every time NSA defenders argue "well, it's legal" they miss out on the fact that a very large number of people don't care because they don't think it should be legal at all. That's the debate we're trying to have -- and it's the one President Obama, Dianne Feinstein, Mike Rogers, Keith Alexander and James Clapper still can't even recognize is the key question.

Either way, as Hoelzer notes, Snowden really had nowhere to "complain" to about this actual issue:

Snowden’s former employer, Booz Allen, which requires employees to report “all suspected violations of the law” and cautions them to “take care to not report a violation to someone that [they] believe is involved in the matter.”

Well, nearly everyone Edward Snowden worked for—up to and including the president of the United States—was involved in the matter. So, again, whom exactly should he have gone to with his concerns?

Okay, well, what about Congress? Multiple people have suggested he could go talk to members of Congress. But, not so fast. Hoelzer takes a look at the Director of National Intelligence James Clapper's website where it has a page on How to File A Whistleblower Complaint, explaining the "process" for contacting Congress (if you aren't comfortable raising the concern within the intelligence community, which, clearly, Snowden was not). But, again, not so easy:

But then I noticed a problem. Before bringing an “urgent concern” to Congress, the guidance states that all potential intelligence community whistle-blowers must first notify the DNI of their “intent to contact the congressional intelligence committees directly.” In other words, if Snowden wanted to inform the Senate intelligence committee that the DNI had lied, he would first have to inform the DNI that he intended to inform on him. That seems like it could be a problem.

But, let’s say it wasn’t. Let’s say the director of national intelligence did the honorable thing and allowed Snowden to go to the Senate intelligence committee with evidence that he lied. Would Snowden have had any reason to believe going to Congress would make the least bit of difference?

Probably not, since the House and Senate intelligence committees were already aware of the NSA’s activities. And, having worked for Wyden, a committee member who spent years trying to raise concerns about domestic surveillance, I can tell you, individual members of Congress were virtually hamstrung from doing anything about the administration’s activities. Especially since the executive branch’s classification rules forbid the senator from sharing his concerns with anyone outside of the intelligence committee, including staff.

So, really, what "official channels" could Snowden have possibly used? As Hoelzer notes, the only way to really blow the whistle on this was to go "over the head" of the federal government and the President -- and that's to go to the American public.

I understand Obama’s frustration. No one likes it when someone goes over his head. It’s humiliating. But when the guy in charge appears to be a significant part of the problem, sometimes the only way to resolve the problem is to let his boss know what’s going on. And when the guy in charge is the president of the United States, that means letting the American people know what he’s been up to.

On that front, it appears that Snowden did exactly the right thing in how he blew the whistle.

Filed Under: congress, dni, ed snowden, james clapper, nsa, nsa surveillance, official channels, whistleblowing

It's Dangerous For Free Speech When We Confuse Leakers With Spies

from the they're-not-the-same dept

We've tried to make similar points a few times in the past about our concern with the Obama administration going after whistleblowers and the journalists who publish their leaks by using the Espionage Act more than all other Presidents in history, combined (more than twice as much, actually). But the NY Times has a great piece highlighting how the federal government now seems to completely blur the lines between being a leaker and a spy.

“Obama apparently cannot distinguish between communicating information to the enemy and communicating information to the press,” Mr. Goodale wrote. “The former is espionage, the latter is not.”

This is dangerous for a whole host of reasons -- including having an informed and knowledgeable public. But it's also dangerous from a First Amendment standpoint. Remember, the First Amendment protects freedom of expression and freedom of the press -- and both are closely linked when we're talking about whistleblowers leaking information to the public via the press. When we start turning the leakers and the press into "spies" we make that much more difficult, and as a result we have a less free society, and a much more controlling and abusive government.

Of course, some would argue that this is the goal. The very same article quotes former Bush administration apologist lawyer John Yoo -- infamous in part because of his tortured legal defense, twisting the clear meaning and intent of the Geneva Conventions in order to pretend that the US could use torture as an interrogation technique without violating the rules. Not surprisingly, Yoo doesn't have any problem at all with condemning leakers as spies.

“Manning’s defenders will say that Manning only leaked information to the 21st-century equivalent of a newspaper, and that he could not have known that Al Qaeda would read it,” Professor Yoo wrote in National Review Online.

“But WikiLeaks is not The New York Times or The Wall Street Journal, and it does not have First Amendment rights,” he added. “Manning communicated regularly with WikiLeaks’ founder and would have known about the group’s anarchic, anti-U.S. mission.”

Of course, Yoo is either woefully ignorant or flat out lying -- neither of which makes him look good. First of all, the Manning/Lamo transcripts make it quite clear that Manning had very little communications with Assange. But, even more important, as research from professor Yochai Benkler made clear, prior to Manning's leaks, Wikileaks was not seen as anti-US in its mission at all. Its earlier leaks had been focused on mostly corporate and government malfeasance around the globe (mostly outside the US), such as with Bank Julius Baer. As Benkler explained:

When you read the hundreds of news stories and other materials published about WikiLeaks before early 2010, what you see is a young, exciting new media organization. The darker stories about Julian Assange and the dangers that the site poses developed only in the latter half of 2010, as the steady release of leaks about the U.S. triggered ever-more hyperbolic denouncements from the Administration (such as Joe Biden's calling Assange a “high-tech terrorist”), and as relations between Assange and his traditional media partners soured.

In early 2010, when Manning did his leaking, none of that had happened yet. WikiLeaks was still a new media phenom, an outfit originally known for releasing things like a Somali rebel leader’s decision to assassinate government officials in Somalia, or a major story exposing corruption in the government of Daniel Arap Moi in Kenya. Over the years WikiLeaks also exposed documents that shined a light on U.S. government practices, such as operating procedures in Camp Delta in Guantanamo or a draft of a secretly negotiated, highly controversial trade treaty called the Anti-Counterfeiting Trade Agreement. But that was not the primary focus. To name but a few examples, it published documents that sought to expose a Swiss Bank’s use of Cayman accounts to help rich clients avoid paying taxes, oil related corruption in Peru, banking abuses in Iceland, pharmaceutical company influence peddling at the World Health Organization, and extra-judicial killings in Kenya. For its work, WikiLeaks won Amnesty International's New Media award in 2009 and the Freedom of Expression Award from the British magazine, Index of Censorship, in 2008.

Furthermore, the idea that Yoo has that Wikileaks somehow "does not have First Amendment rights" because it's "not the NY Times or the Wall Street Journal" makes no sense. It's just assuming that because one brand is established and another is new that the established one automatically has greater rights than the new one. That's an argument based on nothing more than historical bias, rather than any sort of recognition of reality. Wikileaks was never focused on the US, but was focused on revealing conspiracies of all kinds -- that the US just happened to be involved in many speaks more to problems with the way the US government works, than to Wikileaks itself.

But there's a larger, more troubling, point in all of this. When we redefine whistleblower and leaker to the point that they're considered "spies," and, at the same time, accuse journalists and media outlets of being co-conspirators and not being covered by the same basic rights that we supposedly honor in this country, the further and further we get from the basic ideals of a free and fair society. Again, those in power don't seem to much care for a free and fair society -- because they're in power. But for people who would like to have a government that actually represents the people, this should be a major concern.

Filed Under: bradley manning, ed snowden, espionage, free speech, leaks, whistleblowing