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Yes, Section 215 Might Be Used to Get Dick Pics — or Porn Searches and Dick Uploads

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John Oliver did an interview with Edward Snowden that aired on his show last night. After showing Snowden that most random people stopped in Times Square didn’t know or care what Snowden had done (starting at 22:30), Oliver then showed that they would care if this were all about the government collecting dick pics.

So Snowden goes through and describes (after 28:00) what authorities the government might use to collect dick pics, focusing largely on different aspects of Section 702 and EO 12333. But (at 30:00), Snowden says the NSA (Oliver should have been asking about the government, not NSA) couldn’t use Section 215 to get dick pics, though they could use the phone dragnet to find out if you’ve been calling a penis enlargement center.

Not so fast, Ed!

It is, hypothetically, possible that the government (more likely FBI than NSA) could use Section 215 to get dick pics, provided there were some entity that had a collection of dick pics it was interested in. It would only 1) need to find that entity that had these dick pics as records, 2) come up with some reason why they needed the dick pics for either a counterterrorism or counterintelligence purpose, and 3) convince the rubber stamp FISA Court that these dick pics were “relevant to” a counterterrorism or counterintelligence FBI investigation (which we know FISC interprets unbelievably broadly) but that FBI wasn’t seeking the dick pics solely on the basis of the target’s First Amendment protected, um, speech. Hypothetically possible, at least, if unlikely. A dick pic is a tangible thing.

Furthermore, it is almost certain that the FBI (again, not the NSA, but if the FBI does it, it is more likely targeted at an American) is using Section 215 to get URL searches and data flows — along with fairly comprehensive online profiles — on users. So in addition to Snowden’s explanation of using the phone dragnet to see if you’ve called a penis enlargement center, the FBI may be using Section 215 to track a user’s porn watching habits and even if they’ve been uploading their own dick pics to some server. There likely are dick pics in this collection (though the FISC almost certainly requires minimization if the collection, so may limit the FBI’s ability to retain dick pics unless it can claim it needs them for an investigative purpose). (Though note, a recent Shane Harris story reveals NSA needs its own porn room because its analysts spend so much time analyzing what they collect.)

Again, Section 215 is far more than the phone dragnet, it is designed to support fairly creative collection of “tangible things” so long as there is an attenuated national security purpose to do so, and we know it supports a great deal of collection on users’ Internet use.

And while dick pics might be just a hypothetical case, far easier to imagine would be FBI using Section 215 to obtain DNA — perhaps from hospitals, perhaps from hotels where targets had stayed, obviously from cops (though they could get that through info sharing). DNA is, after all, a tangible thing. And we know that the government has a DNA database of Gitmo detainees, so they have been amassing DNA to positively ID both the targets but also family members of targets.

One more note. Several of the ways the NSA has gotten dick pics — via Yahoo video chats, stealing from Google servers overseas — may have become less accessible to the government overseas as companies move to encrypt more of their traffic. I assume they’ll find some new way to get these. But for the moment, the government may be ingesting fewer dick pics than they were in 2013.

The AP’s Recycled “We Don’t Need a Phone Dragnet” Story Lays the Groundwork for Swapping Section 215 for CISA

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The AP has a story that it calls an “Exclusive” and says “has not been reported before” reporting that the NSA considered killing the phone dragnet back before Edward Snowden disclosed it.

The National Security Agency considered abandoning its secret program to collect and store American calling records in the months before leaker Edward Snowden revealed the practice, current and former intelligence officials say, because some officials believed the costs outweighed the meager counterterrorism benefits.

After the leak and the collective surprise around the world, NSA leaders strongly defended the phone records program to Congress and the public, but without disclosing the internal debate.

The proposal to kill the program was circulating among top managers but had not yet reached the desk of Gen. Keith Alexander, then the NSA director, according to current and former intelligence officials who would not be quoted because the details are sensitive. Two former senior NSA officials say they doubt Alexander would have approved it.

Still, the behind-the-scenes NSA concerns, which have not been reported previously, could be relevant as Congress decides whether to renew or modify the phone records collection when the law authorizing it expires in June.

The story looks a lot like (though has mostly different dates) this AP story, published just after USA Freedom Act failed in the Senate in November.

Years before Edward Snowden sparked a public outcry with the disclosure that the National Security Agency had been secretly collecting American telephone records, some NSA executives voiced strong objections to the program, current and former intelligence officials say. The program exceeded the agency’s mandate to focus on foreign spying and would do little to stop terror plots, the executives argued.

The 2009 dissent, led by a senior NSA official and embraced by others at the agency, prompted the Obama administration to consider, but ultimately abandon, a plan to stop gathering the records.

The secret internal debate has not been previously reported. The Senate on Tuesday rejected an administration proposal that would have curbed the program and left the records in the hands of telephone companies rather than the government. That would be an arrangement similar to the one the administration quietly rejected in 2009.

The unquestioned claim that the program doesn’t get cell data — presented even as the Dzhokhar Tsarnaev case makes clear it does* — appears in both (indeed, this most recent version inaccurately references T-Mobile cell phone user Basaaly Moalin’s case — getting the monetary amounts wrong — without realizing that that case, too, disproves the cell claim).

Most importantly, however, both stories report these previous questions about the efficacy of the phone dragnet in the context of questions about whether the program will be reauthorized after June.

Perhaps the most telling detail, however, is that this new story inaccurately describes what happened to the Internet dragnet in 2011.

There was a precedent for ending collection cold turkey. Two years earlier, the NSA cited similar cost-benefit calculations when it stopped another secret program under which it was collecting Americans’ email metadata — information showing who was communicating with whom, but not the content of the messages. That decision was made public via the Snowden leaks.

The NSA in no way went “cold turkey” in 2011. Starting in 2009, just before it finally confessed to DOJ it had been violating collection rules for the life of the program, it rolled out the SPCMA program that allowed the government to do precisely the same thing, from precisely the same user interface, with any Internet data accessible through EO 12333. SPCMA was made available to all units within NSA in early 2011, well before NSA “went cold turkey.” And, at the same time, NSA moved some of its Internet dragnet to PRISM production, with the added benefit that it had few of the data sharing limits that the PRTT dragnet did.

That is, rather than going “cold turkey” the NSA moved the production under different authorities, which came with the added benefits of weaker FISC oversight, application for uses beyond counterterrorism, and far, far more permissive dissemination rules.

That AP’s sources claimed — and AP credulously reported — that this is about “cold turkey” is a pretty glaring hint that the NSA and FBI are preparing to do something very similar with the phone dragnet. As with the Internet dragnet, SPCMA permits phone chaining for any EO 12333 phone collection, under far looser rules. And under CISA, anyone who “voluntarily” wants to share this data (which always includes AT&T and likely includes other backbone providers) can share promiscuously and with greater secrecy (because it is protected by both Trade Secret and FOIA exemption). Some of this production, done under PRISM, would permit the government to get “connection” chaining information more easily than under a phone dragnet. And as with the Internet dragnet, any move of Section 215 production to CISA production evades existing FISC oversight.

A year ago, Keith Alexander testified that if they just had a classified data sharing program — like CISA — they could live without the dragnet. A year ago, basically, Alexander said he’d be willing to swap CISA for the phone dragnet.

Remarkably, these inaccurate AP stories always seem to serve that story, all while fostering a laughable myth that “ending the phone dragnet” would in any way end the practice of a phone dragnet.

*Update 3/30: My claim that the Marathon case proves they got cell call data relies only on FBI claims they were able to use the dragnet to good effect. I actually think that FBI used an AT&T specific dragnet — not the complete phone dragnet — to identify the brothers’ phones (while the government has offered conflicting testimony on this account, I’m fairly certain all of Dzhokhar’s phones and Tamerlan’s pre-paid phone discussed at Dzhokhar’s trial were T-Mobile phones). But if that’s the case, then FBI lied outright when making those earlier claims. I’m perfectly willing to believe that, but if that’s the now-operative story I’d love for someone to confirm it.

If US Won’t Share Intelligence with Those Hosting Snowden, Why Are We Engaged with Russia on ISIL?

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Glenn Greenwald reports that, when he asked German Vice Chancellor Sigmar Gabriel why he doesn’t offer asylum to Edward Snowden, Gabriel revealed the US had threatened to cut Germany off from intelligence sharing if they did.

German Vice Chancellor Sigmar Gabriel (above) said this week in Homburg that the U.S. Government threatened to cease sharing intelligence with Germany if Berlin offered asylum to NSA whistleblower Edward Snowden or otherwise arranged for him to travel to that country. “They told us they would stop notifying us of plots and other intelligence matters,” Gabriel said.

The Vice Chancellor delivered a speech in which he praised the journalists who worked on the Snowden archive, and then lamented the fact that Snowden was forced to seek refuge in “Vladimir Putin’s autocratic Russia” because no other nation was willing and able to protect him from threats of imprisonment by the U.S. Government (I was present at the event to receive an award). That prompted an audience member to interrupt his speech and yell out: “why don’t you bring him to Germany, then?”

[snip]

Afterward, however, when I pressed the Vice Chancellor (who is also head of the Social Democratic Party, as well as the country’s Economy and Energy Minister) as to why the German government could not and would not offer Snowden asylum – which, under international law, negates the asylee’s status as a fugitive – he told me that the U.S. Government had aggressively threatened the Germans that if they did so, they would be “cut off” from all intelligence sharing. That would mean, if the threat were carried out, that the Americans would literally allow the German population to remain vulnerable to a brewing attack discovered by the Americans by withholding that information from their government.

Which is odd, because CIA Director John Brennan just implied — in a speech that was largely about information sharing — that the US continues to engage with Russia on terrorism issues, even though it hosts Snowden.

QUESTION: James Sitrick, Baker & McKenzie. You spent a considerable amount of your opening remarks talking about the importance of liaison relationships. Charlie alluded to this in one of his references to you, on the adage—the old adage has it that the enemy of your enemy is your friend. Are we in any way quietly, diplomatically, indirectly, liaisoning with Mr. Soleimani and his group and his people in Iraq?

BRENNAN: I am not engaging with Mr. Qasem Soleimani, who is the head of the Quds Force of Iran. So no, I am not.

I am engaged, though, with a lot of different partners, some of close, allied countries as well as some that would be considered adversaries, engaged with the Russians on issues related to terrorism.

We did a great job working with the Russians on Sochi. They were very supportive on Boston Marathon. We’re also looking at the threat that ISIL poses both to the United States as well as to Russia.

So I try to take advantage of all the different partners that are out there, because there is a strong alignment on some issues—on proliferation as well as on terrorism and others as well.

Admittedly, the timing on Snowden’s asylum in Russia is pretty remarkable, coming as it did after Sochi and two months after the Marathon attack, launched by brothers with ties to Chechnya. In fact, in Dzhokhar’s trial, we just learned that Tamerlan sent $900 back to Chechnya in the weeks before the attack. Thus, at the time Putin granted Snowden his first year of asylum, the US needed Russian cooperation more urgently than Russia needed America’s (and Putin was carefully managing that relationship).

Still, by tying cooperation with Russia to ISIL, Brennan implied it is ongoing (not least because the government was not as engaged against ISIL as it might have been until a year after Snowden arrived in Russia).

At least if we’re to believe Gabriel, the US threatened to cut off a close ally if it hosted Snowden, but it continues to share intelligence with one of our major adversaries on matters of common interest.

Edward Snowden Got One Fifth of Americans to Adopt Better Passwords

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Thanks to Edward Snowden, almost 22% of Americans have adopted more complex passwords, one of the most basic things they could do to keep themselves safer online.

That’s according to a Pew Research study released this week tracking how Americans have responded to the disclosures about government spying. It found that 87% of Americans are aware of the surveillance programs. And of those 87%, 25% are using more complex passwords. That likely means they’ve ditched passwords like “password” and replaced them with things that are harder for the average criminal hacker to guess.

That’s actually a very significant change, all brought about by one guy’s effort to illuminate what our government is doing. It won’t protect most people against the NSA, but will make people safer from identity theft.

Meanwhile, Congress is diddling away passing a bill, CISA, that probably would not have prevented any known hack. I’d say Snowden is doing a better job at protecting the country.

What an XKeyscore Fingerprint Looks Like

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As part of its cooperation with New Zealand’s best journalist on that country’s SIGINT activities, Nicky Hager, the Intercept has published a story on the targets of a particular XKeyscore query (note: these stories say the outlets obtained this document; they don’t actually say they obtained it from Edward Snowden): top officials in the Solomon Islands and an anti-corruption activist there.

Aside from the targets, which I’ll get to, the story is interesting because it shows in greater detail than we’ve seen what an XKS query looks like. It’s a fairly standard computer query, though initiated by the word “fingerprint.” Some of it is consistent with what Snowden has described fingerprints to include: all the correlated identities that might be associated with a search. The query searches on jremobatu — presumably an email unique name — and James Remobatu, for example. As I have noted, if they wanted to target all the online activities of one particularly person — say, me! — they would add on all the known identifiers, so emptywheel, @emptywheel, Marcy Wheeler, and all the cookies they knew to be associated with me.

What’s interesting, though, is this query is not seeking email or other Internet communication per se. It appears to be seeking documents, right out of a file labeled Solomon government documents. Those may have been pulled and stored as attachments on emails. But the query highlights the degree to which XKS sucks up everything, including documents.

Finally, consider the target of the query. As both articles admit, the reason behind some of the surveillance is understandable, if sustained. Australia and New Zealand had peacekeepers in the Solomons to deal with ethnic tensions there, though were withdrawing by January 2013 when the query was done. The query included related keywords.

In the late 1990s and early 2000s the islands suffered from ethnic violence known as “The Tensions.” This led to the 2003 deployment to the Solomons of New Zealand, Australian and Pacific Island police and military peacekeepers. By January 2013, the date of the target list, both New Zealand and Australia were focused on withdrawing their forces from the island country and by the end of that year they were gone.

The XKEYSCORE list shows New Zealand was carrying out surveillance of several terms associated with militant groups on the island, such as “former tension militants,” and “malaita eagle force.” But with the security situation stabilized by 2013, it is unclear why New Zealand spies appear to have continued an expansive surveillance operation across the government, even tailoring XKEYSCORE to intercept information about an anti-corruption campaigner.

More specifically, however, the query was targeting not the militants, but the Truth and Reconciliation process in the wake of the violence.

I would go further than these articles, however, and say I’m not surprised the Five Eyes spied on a Truth and Reconciliation process. I would fully expect NSA’s “customer” CIA to ask it to track the South African and Colombian Truth and Reconciliation processes, because the CIA collaborated in the suppression of the opposition in both cases (going so far as providing the intelligence behind Nelson Mandela’s arrest in the former case). While I have no reason to expect CIA was involved in the Solomons, I would expect one or more of the myriad intelligence agencies in the Five Eyes country was, particularly given the presence of Aussie and Kiwi peacekeepers there. And they would want to know how their role were being exposed as part of the Truth and Reconciliation process. This query would likely show that.

Which brings me to the point the activist in question, Benjamin Afuga (who sometimes publishes leaked documents) made: this spying, which would definitely detail all cooperation between him and the government, might also reveal his sources.

Benjamin Afuga, the anti-corruption campaigner, said he was concerned the surveillance may have exposed some of the sources of the leaks he publishes online.

“I’m an open person – just like an open book,” Afuga said. “I don’t have anything else other than what I’m doing as a whistleblower and someone who exposes corruption. I don’t really understand what they are looking for. I have nothing to hide.”

Ah, but Afuga does have things to hide: his sources. And again, if one or another Five Eyes country had intelligence operatives involved both during the tensions and in the peace keeping process, they would definitely want to know them.

Again, this is all standard spying stuff. I expect CIA (or any other HUMINT agency) would want to know if they’re being talked about and if so by whom — I even expect CIA does a more crude version of this within the US about some of its most sensitive topics, not least because of the way they went after the SSCI Torture investigators.

But this query does provide a sense of just how powerful this spying is in a world when our communications aren’t encrypted.

CBP Repeats the Snowden Asylum “Mistake” with Matthew DeHart

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One of the favorite tactics of Edward Snowden’s critics is to call him a “fugitive” in Russia, emphasizing that he is avoiding US legal prosecution by hiding in an abusive country. As Glenn Greenwald noted yesterday, such digs ignore that Snowden has asylum, which is well-recognized especially in the case of espionage claims, as Snowden has been charged with.

CNN’s “expert” is apparently unaware that the DOJ very frequently — almost always, in fact — negotiates with people charged with very serious felonies over plea agreements. He’s also apparently unaware of this thing called “asylum,” which the U.S. routinely grants to people charged by other countries with crimes on the ground that they’d be persecuted with imprisonment if they returned home.

That background is instructive given the public report Customs and Border Patrol released the other day on arresting Matthew DeHart, who has been charged with kiddie porn but is actually wanted at least in part (even according to the judge in the kiddie porn case) because of his ties to Anonymous and maybe because of the document that reportedly describes something for which the FBI investigated the CIA which DeHart had on two thumb drives.

With the assistance of law enforcement partners, U.S. Customs and Border Protection officers at Peace Bridge Port of Entry arrested a traveler wanted under an indictment relating to production and transportation of child pornography.

On March 1, CBP officers arrested Matthew DeHart, a 30-year-old male, a U.S. citizen in the custody of the Canadian Border Services Agency, after DeHart attempted to enter Canada.  DeHart was wanted on a felony warrant from April 2013, for failure to appear at a court hearing on his indictment for production and transportation of child pornography.

“We work very closely with our Canadian counterparts,” said Rose Hilmey, CBP director of field operations for the Buffalo Field Office. “They were able to identify this person as wanted by American law enforcement, and returned him to the custody of CBP officers to face charges.”

DeHart was taken into FBI custody after a warrant and extradition were confirmed.

As Adrian Humphreys (the reporter who did the series on DeHart) noted, that characterization is wrong. DeHart was not extradited, but instead denied refugee status for torture. As the Courage Foundation (which is now supporting DeHart’s case) elaborated, the distinction in DeHart’s case is critical. Had the US asked Canada to extradite DeHart for espionage, it might have changed his status for asylum considerations in Canada.

Extradition is a process that would have been instigated by US authorities, whereas in Matt’s case he was deported at the behest of the Canadian authorities after he failed in his bid for refugee status and protection under the UN Convention on Torture.

This is significant, because if the US authorities had instigation extradition proceedings against Matt, they would have been forced to show their hand and file all charges before extradition was considered by the Canadian government. However, since Matt was deported, it leaves the door open for more charges to be filed. This is of concern to Matt and his legal team, since although Matt currently faces child pornography charges in the US — charges Matt vehemently denies — during extensive FBI interrogation sessions Matt endured, all the questions the agents asked were about Matt’s work with Anonymous, his connection to WikiLeaks, his former colleagues in the military, and issues related to national security. Because Matt was deported rather than extradited, it is still possible therefore that espionage charges could be filed.

There are two scenarios here. First, that the government’s concerns really are — which would be totally understandable — that a former drone operator with ties to Anonymous sought to defect to Russia and Venezuela and therefore presents a huge espionage concern. Even given what DeHart, by his own admission, admitted to (he claims, under torture), then the government could easily charge him with security related charges.

But they haven’t. Maybe they will — maybe that’s imminent. But they haven’t in several years during which they could have.

Alternately, they want DeHart because of those two thumb drives, which would represent an interest for the nation’s spooks, but for which DeHart would not be the guilty party.

The more they pull shit like this, the more it suggests this case is about the latter issue, the data that DeHart had on two thumb drives.

Partnering with the Kiwis, NSA “Protects” Us from Climate Resistors?

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The Intercept has what will be the first in a series of partnering articles with New Zealand’s great surveillance reporter Nicky Hager on the role of New Zealand’s SIGINT agency, Government Security Communications Bureau, in the Five Eyes dragnet. As part of it, they target south Pacific islands that its hard to understand as a threat to anyone.

Since 2009, the Government Communications Security Bureau intelligence base at Waihopai has moved to “full-take collection”, indiscriminately intercepting Asia-Pacific communications and providing them en masse to the NSA through the controversial NSA intelligence system XKeyscore, which is used to monitor emails and internet browsing habits.

[snip]

The documents identify nearly two dozen countries that are intensively spied on by the GCSB. On the target list are most of New Zealand’s Pacific neighbours, including small and vulnerable nations such as Tuvalu, Nauru, Kiribati and Samoa.

Other South Pacific GCSB targets are Vanuatu, the Solomon Islands, New Caledonia, Fiji, Tonga and French Polynesia. The spy agency intercepts the flows of communications between these countries and then breaks them down into individual emails, phone calls, social media messages and other types of communications. All this intelligence is immediately made available to the NSA, which is based in Maryland, near Washington, DC.

Effectively, the NSA forces GCSB to spy on these teeny tiny countries in the middle of the Pacific in order to benefit from our dragnet.

And for what?!?!

Even the CIA acknowledges that Nauru has no military, and it somewhat optimistically claims Nauru has no international disputes.

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The same is true of Tuvalu.

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Both have a dispute, of course. The rich lifestyles of the rest of the world (which Tuvalu shared in for a period of Phosphate exploitation) threaten to wipe these nations off the face of the earth with rising ocean levels. To the extent they might be threats to the US, it is because the citizens of Tuvalu and Nauru speak with the moral authority of some of the first peoples who will be wiped off the face of the earth because of climate change.

Aside from that, Tuvalu has its own Internet domain; Nauru has become a tax haven.

Still, it’s hard to believe that the most powerful country in the world, which has an active military population that is 136 times the population of these countries, is really threatened by either of these countries.

But nevertheless, we’re forcing New Zealand to get “full take” from them, as the price of admission to our spying club.

Caesars Palace Not Held to Same Standard Lavabit Is

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I’m going to have a longer post about this opinion recommending a judge throw out the warrant, based on evidence FBI obtained by shutting down DSL and then pretending to be the cable guys that would fix it, used in bust Paul Phua (see this article for more).

But I want to point to the excuse FBI Agent Minh Pham used to explain away several other errors he made in the search warrant:

After Pham submitted and obtained the search warrant, he learned the affidavit contained errors. Specifically, it stated that Paul Phua wired $4 million into a Caesars account to secure a credit line. Pham later discovered it was actually Seng Chen “Richard” Yong that requested the wire to secure both their lines of credit. However, at the time Pham submitted the search warrant affidavit, he believed it was correct that Paul Phua had initiated this transfer.

The affidavit also stated Paul Phua had transferred approximately $900,000 from a casino in Fort Lauderdale, Florida, to the Caesars account. However, Pham later learned that Paul Phua had been only one of the individuals who signed the consent to have that money wire-transferred into Yong’s account. At the time Pham submitted the affidavit, he believed the statement was true based on documents from Caesars concerning monetary transfers that he had received. Pham referred to the spreadsheet contained in government’s Exhibit 2F as a document he relied upon to support his statement in the affidavit. The font size was very small and difficult to read.

He also discovered another error in the affidavit days later. There were transfers for $3 million between individuals in the villas. He looked at the spreadsheet, and it was off by one or two lines,” which caused him to associate the wrong name with the transfer. [my emphasis]

The font on the spreadsheet Caesars Palace had given the FBI when it requested they open an investigation was “very small difficult to read.”

You’ll recall that when the FBI went after Lavabit to get its crypto key, Lavar Levison tried to comply by providing a printout of the key. But the government complained it was illegible, and got Levison held in contempt.

In an interesting work-around, Levison complied the next day by turning over the private SSL keys as an 11 page printout in 4-point type. The government, not unreasonably, called the printout “illegible.”

“To make use of these keys, the FBI would have to manually input all 2,560 characters, and one incorrect keystroke in this laborious process would render the FBI collection system incapable of collecting decrypted data,” prosecutors wrote.

The court ordered Levison to provide a more useful electronic copy. By August 5, Lavabit was still resisting the order, and the judge ordered that Levison would be fined $5,000 a day beginning August 6 until he handed over electronic copies of the keys.

Apparently, huge casinos are held to a different standard than small email providers.

 

The Public Interest and the International Surveillance State

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I’ve been contemplating how to respond to this hilarious piece from Yishai Schwartz — another of the many “rebuttals” to CitizenFour that betrays rank ignorance of many of the things Edward Snowden leaked. To some degree, Conor Friedersdorf already hit on many key points, notably his takedown of Schwartz’ claims that because people overwhelmingly support the drone program, Snowden shouldn’t be able to invoke it when defending his leaks.

Schwartz goes on to attack Snowden in a particularly unpersuasive way:

Snowden couches his policy disagreements in grandiose terms of democratic theory. But Snowden clearly doesn’t actually give a damn for democratic norms. Transparency and the need for public debate are his battle-cry. But early in the film, he explains that his decision to begin leaking was motivated by his opposition to drone strikes. Snowden is welcome to his opinion on drone strikes, but the program has been the subject of extensive and fierce public debate. This is a debate that, thus far, Snowden’s and his allies have lost. The president’s current drone strikes enjoy overwhelmingpublic support. So citing his opposition to a widely debated policy as his motivation for increasing transparency is, well, odd. But it’s also illustrative. Snowden’s leaks aren’t primarily aimed at returning transparency or triggering a public debate; they are about creating his preferred policy outcomes, outcomes that usually involve a weaker state.

This is a fantastical description of the debate over drones. The White House has repeatedly invoked the state-secrets privilege in lawsuits attempting to stop drone strikes as a violation of the Constitution. The American public was not permitted to see the legal rationale for a drone strike that targeted and killed a U.S. citizen until earlier this year, long after Snowden decided to become a whistleblower. To this day, the government suppresses information on the number of innocents killed in drone strikes.

“In refusing to release to Congress the rules and justifications governing aprogram that has conducted nearly 400 unmanned drone strikes and killed at least three Americans in the past four years, President Obama is ignoring the system of checks and balances that has governed our country from its earliest days,” John Podesta declared in a March 13, 2013, Washington Post op-ed. “And in keeping this information from the American people, he is undermining the nation’s ability to be a leader on the world stage and is acting in opposition to the democratic principles we hold most important.”

To this day the drone debate is a case study in executive-branch officials subverting democracy by withholding information from Congress, sidestepping the judiciary, and denying the public information vital to a policy debate; the matter was even worse when Snowden first decided to become a whistleblower. To cite it as an example of democracy in action betrays deep confusion about American democracy.

I had been thinking precisely the same thing — but also that the drone program also betrays how naive Schwartz’ dismissal of a public interest defense is.

Purportedly, Snowden will not return to face American justice because he would not receive a “fair trial.” But in the movie, Snowden lawyer Ben Wizner admits that his use of the term is somewhat “unusual.” He accepts that Snowden won’t be denied due process, access to counsel or an impartial jury. Rather his complaint centers on the fact that the law doesn’t include a justification defense for leaks made “in the public interest.” Neither, of course, do many other such prohibitions (murder, theft, littering…).

Generally, Schwartz is right that you can’t murder someone and then claim you did it in the public interest.

You can’t, that is, unless you’re the CIA killing an American citizen with no due process. In that case, you can claim a public authority defense, even though you need to torque the law all out of recognition to do it. Ultimately, though, all you’re doing then is arguing that if the President orders you to do it, you can murder another American.

Then there’s Schwartz’ claim (also mocked by Friedersdorf), that he, a white male, doesn’t worry that the government will invade his house. I would add to Friedersdorf that the claim is especially neat coming as it did the day after EFF confirmed what everyone had predicted: the government has been conducting over 10,000 sneak-and-peak searches (ACLU’s Chris Soghoian insists we call these black bag jobs) a year, using a law justified by terrorism, to look for drugs.

Still, what I find funniest about Schwartz’ piece is the way he conflates categories without any apparent awareness.

Snowden’s experience holed up in his hotel—his fear, his precautions, and the U.S. government’s attempt to apprehend him—becomes an illustration of the very tyranny that Snowden set out to unmask.

That latter connection offends me, and it should offend others as well. The implication is that Snowden has been targeted and persecuted by the government because he is a dissenter. This is false. Snowden is a dissenter, but he is also a law-breaker. And the latter is the reason he has been targeted. There are a host of journalists, pundits, and commentators who share Snowden’s views, and they are all dissenters. But as far as I know, journalist Conor Friedersdorf and anchor Piers Morgan do not fear arrest.

For starters, Snowden was exhibiting that “paranoia” (the same paranoia he claims to have taught diplomats, of course) before the NSA knew to worry. He was not yet a law-breaker — at least not as far as the government knew. Moreover (even setting aside that Piers Morgan, newly re-implicated in illegal spying, should fear arrest), journalists are among a fairly broad class of people who should be paranoid even if they don’t fear arrest, because if they’re not sufficiently paranoid they can’t do their job.

But even if Snowden’s behavior were motivated from his role as “law-breaker,” Schwartz’ point should still be wrong, but is not. Snowden has been charged with Espionage, but even with all the propaganda out there, credible law enforcement sources have never claimed they had evidence Snowden was an Agent of a Foreign power. As such, he should be safe from the paranoia that an all-seeing state can find him in Hong Kong, because to find even a law-breaker in Hong Kong, the state should be using mutual legal assistance treaties and the like (though the downing of Evo Morales’ plane should disabuse you of the notion that the state would have in this case). They should be using law enforcement, not the dragnet.

Yet we know — thanks, in part, to Edward Snowden, that the government routinely uses the dragnet as it conducts assessments of people against whom it doesn’t even have evidence of wrong-doing. While the government might, in the first days of Snowden’s leaks, have been able to convince FISC Snowden was probably acting with Chinese or Russian help, that doesn’t change the fact — admitted now by the FBI — that they use the dragnet with mere racial profiling and the like.

Then finally there is Schwartz’ skepticism about the danger of this dragnet, operating globally.

Poitras has little do add to the debate over American surveillance programs. Through the mouths of privacy activist Jacob Appelbam, former NSA whistleblower William Binney and others, she argues that the reach of America’s (and our allies’) surveillance is unprecedented, which is true. But she also insists that our surveillance programs are unnecessary, that increases in government capabilities inherently infringe on our liberty, and warns ominously that dictatorships begin their oppression with the collection of data. 

Henry Farrell, in an awesome piece skewering the more liberal version of this American exceptionalism (read for the skewering, but definitely make sure to read through to the argument at the end), warns about the dangers of this globalizing dragnet.

Since September 11, 2001, surveillance has been quietly remaking domestic politics and international relations. The forces of globalization, which rapidly accelerated during the 1990s, made travel, trade and communication far easier and cheaper between the advanced industrial democracies and a key group of less developed countries. The 9/11 attacks exposed the dangers of interdependence. Domestic-security agencies sought—and usually got—vastly expanded resources, allowing them to implement new forms of large-scale data gathering, analysis and sharing. The risks and opportunities of interdependence also led them to work together across borders in unprecedented ways. Not only was it far easier and cheaper than ever before to gather information on how ordinary members of the population were behaving and communicating with each other, but it was also far easier and cheaper to share this information across countries. It is hard to overstate the importance of these data-sharing arrangements. 

[snip]

Most liberals assume a clear division between national politics, where we have strong rights and duties toward each other, and international politics, where these rights and duties are attenuated. National-security liberals, in contrast, start from the belief that we owe it to the world to remake it in more liberal ways and that America is uniquely willing to further this project and capable of doing so by projecting state power.

Snowden and Greenwald suggest that this project is not only doomed but also corrupt. The burgeoning of the surveillance state in the United States and its allies is leading not to the international spread of liberalism, but rather to its hollowing out in the core Western democracies. Accountability is escaping into a realm of secret decisions and shadowy forms of cross-national cooperation and connivance.

Almost all Snowden critics refuse to engage this larger problem, the degree to which America’s dragnet is turning its position as global hegemon from a force (debatably) for good into something far more ominous, an infrastructure of discipline. While it may now primarily target dissidents in other countries (though it already does target those who oppose American power), the infrastructure can easily be adapted (and may have, when it was still Stellar Wind) to target US dissidents. And it already does incorporate people — lawyers, human rights workers, journalists — whose roles need protection for democracy to function. In any case, given that it has already incorporated the dragnet into its efforts to racially profile and recruit informants, there’s adequate reason to be alarmed, even if you are a jingoistic American.

Nobel Prize: The Surveillance Fight Remains Ahead of Us

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This morning, the Nobel Prize awarded the Peace Price to Pakistani activist Malala Yousafzai.

In a piece published earlier this morning at Salon, I pointed out that so long as countries like Norway participate in the NSA’s dragnet, Edward Snowden will never get a Nobel Prize.

No European country but Russia has offered Snowden asylum, so it’s unlikely the Norwegians will do something just as likely to piss off the U.S. Numerous European countries, after all, play willing partners in America’s global dragnet. Europe — including Norway — are the spies Snowden warned us against.

But I also made a more important point.

Like Obama — who got a Nobel Prize well before he had delivered on his promises — the world community has not yet really acted on Edward Snowden’s invitation to reform.

Snowden has completed a courageous act, leaking a mother lode of documents revealing just how exposed we are to the NSA’s glare. He has continued to speak out, to the extent he is able from Russia.

But the response remains very much in flux. Across the world, it’s quite possible Snowden’s leaks provide more repressive government the excuse to crack down. Certainly America’s Five Eyes spying partners (in addition to the UK, New Zealand, Australia, and Canada) are doing so: all but Canada have passed or are passing expansive laws legalizing still more surveillance. Citizens — in Five Eyes countries and outside — have not yet seized the opportunity created by Snowden to roll back the dragnet. Even in the U.S., the only reform on offer, Patrick Leahy’s USA Freedom Act, worsens some aspects of spying while achieving the important goal of removing all Americans’ phone records from the government.

Snowden did a courageous thing by leaking the NSA’s secrets, and continues to engage, as possible, in constructive fashion. If the world responded well to those disclosures, it might lead to a more just world, one much safer for dissent and human relationships. But we — the rest of the world — have not yet delivered on that promise yet, and may not. So a prize for Snowden — no matter how important his actions — may yet reward the merehope of change, not real progress towards it.

The world’s relative inaction in response to Snowden’s warnings does not at all detract from Snowden’s courage. But it does mean it is far too early to conclude that we’ve used this opportunity Snowden gave us to reverse a dangerous dragnet.