Seven months ago, the world began to learn the vast scope of the National Security Agency’s reach into the lives of hundreds of millions of people in the United States and around the globe, as it collects information about their phone calls, their email messages, their friends and contacts, how they spend their days and where they spend their nights. The public learned in great detail how the agency has exceeded its mandate and abused its authority, prompting outrage at kitchen tables and at the desks of Congress, which may finally begin to limit these practices…
…All of this is entirely because of information provided to journalists by Edward Snowden, the former N.S.A. contractor who stole a trove of highly classified documents after he became disillusioned with the agency’s voraciousness. Mr. Snowden is now living in Russia, on the run from American charges of espionage and theft, and he faces the prospect of spending the rest of his life looking over his shoulder.
Considering the enormous value of the information he has revealed, and the abuses he has exposed, Mr. Snowden deserves better than a life of permanent exile, fear and flight. He may have committed a crime to do so, but he has done his country a great service. It is time for the United States to offer Mr. Snowden a plea bargain or some form of clemency that would allow him to return home, face at least substantially reduced punishment in light of his role as a whistle-blower, and have the hope of a life advocating for greater privacy and far stronger oversight of the runaway intelligence community…
When someone reveals that government officials have routinely and deliberately broken the law, that person should not face life in prison at the hands of the same government.
New York Times Editorial. Edward Snowden, Whistle-Blower.
FJP: First, good on The New York Times.
Second, as the Times points out, Snowden’s been charged with two violations of the Espionage Act “involving unauthorized communication of classified information, and a charge of theft of government property.”
While the editorial suggests Snowden should receive clemency or, at the very least, a reduced sentence compared to the decades he faces under the current charges, take a look at the Freedom of the Press Foundation’s analysis of what Snowden would be able to present in his defense should he wind up in court. Basically, nothing:
If Edward Snowden comes back to the US to face trial, he likely 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…
…[I]n 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.
Chilling, and worthwhile to keep in mind when people say he should return from Russia and make his case to court.
Point, via The Guardian: The United Nations moved a step closer to calling for an end to excessive surveillance on Tuesday in a resolution that reaffirms the “human right to privacy” and calls for the UN’s human rights commissioner to conduct an inquiry into the impact of mass digital snooping.
Counterpoint, via Foreign Policy: The United States and its key intelligence allies are quietly working behind the scenes to kneecap a mounting movement in the United Nations to promote a universal human right to online privacy, according to diplomatic sources and an internal American government document obtained by The Cable.
Meantime, via Techrunch: Sir Tim Berners-Lee Blasts “Insidious, Chilling Effects” Of Online Surveillance, Says We Should Be Protecting Whistleblowers Like Snowden.
The Supreme Court hears oral arguments today in a campaign finance case. At issue is whether total caps on direct individual giving to candidates and PACs violate First Amendment rights.
As CNN puts it, “The competing arguments are stark: supporters of campaign finance reform say current federal regulations are designed to prevent corruption in politics. Opponents said it would criminalize free speech and association.”
While oral arguments run today with a decision on the case expected next spring, Harvard professor Lawrence Lessig submitted a brief in September in the form of a Tumblr.
First: Via Fred Wilson:
Professor Larry Lessig has submitted a brief to the Supreme Court in a case arguing that limiting large political contributions is Constitutional and exactly what the Framers had in mind when they used the word corruption.
As part of the evidence he has submitted in his brief, Larry created a Tumblr with 325 citations from the Framers themselves showing that they had a very broad understanding of the word corruption. This will be the first time that a Tumblr has been submitted as evidence in a Supreme Court case.
Second: So what’s Lessig doing? Via “Corruption,” originally.
According to the Supreme Court, the First Amendment does not limit Congress’s power to pass laws narrowly tailored to attack “corruption” or the “appearance of corruption.” (Buckley v. Valeo). But by “corruption,” the Court increasingly speaks as if it means “quid pro quo” corruption only.
This modern understanding of the term “corruption” struck me as odd, at least for the originalists on the Court. Because it seemed to me clear that the Framers of the Constitution had a different conception of “corruption” than one limited to “quid pro quo” alone. For the Framers, “corruption” could predicate of an individual (“Aaron Burr is corrupt.”) as well as of an institution (“Parliament is corrupt.”). And when it predicates of an institution, that institution is not only corrupt because its members have engaged in “quid pro quo” corruption. Instead, according to the Framers, an institution could also be corrupt when it develops an “improper dependence.”
In other words, the Framers’ “main focus (or most common usage) was institutional corruption. And one prominent example of the institutional corruption they were concerned about was an institution developing an improper dependence. Like — to pick just one totally random example — a Congress developing a dependence upon its funders, rather than the dependence the framers intended — ‘on the People alone.’”
Third: Need help sifting through the "Corruption," originally site? Tumby, the social discoverability engine, has added its search magic to Lessig’s Tumblr to help you go through tags and keywords. To use and experience it, grab the tumbyHover Chrome Extension here.
We are confident that viewers won’t tune into FXX looking for gas or motor oil and drivers won’t pull up to an Exxon pump station expecting to get ‘It’s Always Sunny in Philadelphia.’
Julie Henderson, a spokeswoman for FX Networks, to Ad Age. ExxonMobil Sues FX Networks Over Interlocking XX Logo.
Or, as Salon’s David Sirota puts it:
Underscoring the ridiculousness of a company claiming to own a letter of the alphabet, Deadline notes, “This double-cross brawl may come as a surprise to Dos Equis, which also has a double-X logo, and we assume the legal wrangling will be be watched with considerable interest by the XX chromosome, and the roman numeral for 20.” Same thing for any clothing companies that make t-shirts marked double extra large.
The intelligence community has worried about ‘going dark’ forever, but today they are conducting instant, total invasion of privacy with limited effort. This is the golden age of spying.
Paul Kocher, president and chief scientist of Cryptography Research, in an interview about the NSA’s ability to crack mobile and Internet encryption technologies in order to eavesdrop on online communications and other activities. ProPublica, Revealed: The NSA’s Secret Campaign to Crack, Undermine Internet Security.
The News: The Guardian, The New York Times and ProPublica have partnered on the Edward Snowden NSA leaks to reveal that “the NSA has secretly and successfully worked to break many types of encryption, the widely used technology that is supposed to make it impossible to read intercepted communications.”
Key Takeaway, Part 01: “For the past decade, NSA has led an aggressive, multipronged effort to break widely used Internet encryption technologies… [Now] vast amounts of encrypted Internet data which have up till now been discarded are now exploitable.”
Key Takeaway, Part 02: “Some of the agency’s most intensive efforts have focused on the encryption in universal use in the United States, including Secure Sockets Layer, or SSL; virtual private networks, or VPNs; and the protection used on fourth-generation, or 4G, smartphones.”
Key Takeaway, Part 03: “Beginning in 2000, as encryption tools were gradually blanketing the Web, the NSA invested billions of dollars in a clandestine campaign to preserve its ability to eavesdrop. Having lost a public battle in the 1990s to insert its own “back door” in all encryption, it set out to accomplish the same goal by stealth.”
FJP: “Stealth” is an interesting word choice here. The reason for that is that back in the 90s, the NSA wanted backdoor access to encryption technologies via what it called the Clipper Chip. Proposed during the Clinton administration, and debated publicly, the effort went nowhere with critics pointing out the obvious privacy concerns as well as the economic concerns of US companies being required to allow intelligence agencies access to its encryption technologies. (Read: why would any foreign entity — government, business, individual or otherwise — choose a US technology solution that it knew wasn’t secure?)
As Techdirt notes, “That fight ended with the NSA losing… and now it appears that they just ignored that and effectively spent the past few decades doing the same exact thing, but in secret.”
Very Interesting Aside, Part 01: “Intelligence officials asked The Times and ProPublica not to publish this article, saying that it might prompt foreign targets to switch to new forms of encryption or communications that would be harder to collect or read. The news organizations removed some specific facts but decided to publish the article because of the value of a public debate about government actions that weaken the most powerful tools for protecting the privacy of Americans and others.”
Very Interesting Aside, Part 02: ProPublica explains why it published the story.
They were threatening me all the time and saying I would be put in jail if I didn’t co-operate. They treated me like I was a criminal or someone about to attack the UK… It was exhausting and frustrating, but I knew I wasn’t doing anything wrong.
David Miranda, in an interview with The Guardian about his nine-hour detention at Heathrow Airport under England’s Schedule Seven of its Terrorism Act “which allows officers to stop, search and question individuals at airports, ports and border areas.”
Miranda is the partner of The Guardian’s Glenn Greenwald, the journalist who broke the NSA surveillance story. Miranda tells The Guardian that “he was not allowed to call [Greenwald], who is a qualified lawyer in the US, nor was he given an interpreter, despite being promised one because he felt uncomfortable speaking in a second language… His carry-on bags were searched and, he says, police confiscated a computer, two pen drives, an external hard drive and several other electronic items.”
Miranda was passing through England from Berlin where he had met Laura Poitras, a documentary filmmaker also working on the NSA leaks. He says the drives he carried contained “materials” being passed between Poitras and Greenwald.