The NSA's mass surveillance authority has been scaled back, but answers to other digital issues are still being contentiously debated.
Last Friday marked the second anniversary of the start of Edward Snowden’s disclosures. The days preceding this anniversary highlighted Snowden’s continued prominence. On June 1, Section 215 of the USA PATRIOT Act—the legal basis for the domestic telephone metadata surveillance program Snowden revealed—expired. On June 2, the Senate passed and President Obama signed the USA FREEDOM Act, which the House of Representatives previously approved. This legislation transforms how the U.S. government will access domestic telephone metadata for foreign surveillance. On June 4, the New York Times published a story based on Snowden-disclosed documents claiming the NSA secretly expanded “Internet spying at the U.S. border.” Also on June 4, Snowden published an op-ed claiming that “the world says no to surveillance.”
It was a good week for Snowden. But has it been a good two years for the rest of us?
Section 215 and the Domestic Telephone Metadata Program
Snowden’s signature achievement involved exposing what the U.S. government did under a secret interpretation of Section 215. He defended the principle that the government should not exercise power under secret laws. Although oversight bodies found no NSA abuses, this conclusion did not overcome the rule-of-law defect Snowden emphasized. However, Snowden’s challenge was not the only factor in Section 215’s death. The metadata program was ineffective as a counter-terrorism tool, which led some in the intelligence community to welcome its demise. Had the program contributed to foiling terrorism, its utility might have overcome the taint of its secret jurisprudence.
Section 702 Surveillance Against Foreign Targets
Snowden also exposed programs operated under Section 702 of the Foreign Intelligence Surveillance Act (FISA). For example, the Times article on June 4 used Snowden-provided documents to disclose that the U.S. government began conducting surveillance for malicious cyber activities suspected to originate from foreign governments. Section 702 authorizes surveillance against foreign governments, so the cyber surveillance fits within this legal authority. The NSA was interested in conducting cybersecurity surveillance without identifying a foreign target. Such a step might have secretly expanded Section 702, but the Department of Justice blocked the idea. Like Snowden’s other Section 702 revelations, this disclosure did not reveal secret activities that break the law or abuse legal authority.
Instead, Snowden’s disclosures provided transparency about Section 702 programs. Information released by the intelligence community and contained in oversight reports brought even more transparency. Controversies about the scope of Section 702 surveillance, the scale of incidental collection of communications of non-targeted persons, and government uses of incidentally collected information existed before Snowden came along. The new transparency rekindled these controversies, but also revealed how valuable Section 702 surveillance is to the U.S. government. President Obama imposed additional restrictions on U.S. government use of incidentally collected information but did not curtail the surveillance. Congress has not, so far, amended Section 702.
At the two-year mark, Snowden’s impact concerning Section 702 is less definitive. Section 702 surveillance continues with robust support, leaving advocates of civil liberties lamenting the lack of curtailment of these programs. Further, the new restrictions on the use of incidentally collected information have not placated domestic opponents or foreign governments and nationals. In many ways, pre-Snowden debates about Section 702 continue because the transparency Snowden triggered provides all sides with ammunition.
The Global Context
Snowden intended to spark global debate by framing expansive surveillance and espionage as threats to universal human rights. His June 4 op-ed claimed a “change in global awareness” is underway and “the balance of power is beginning to shift.” However, the gap between these claims and reality is great, suggesting his impact globally has been weak, if not counterproductive.
The latest Freedom on the Net survey does not support Snowden. Between May 2013 and May 2014 (roughly the first year of his disclosures), Internet freedom declined “for the fourth consecutive year, with 36 out of 65 countries assessed . . . experiencing a negative trajectory[.]” Little has happened since May 2014 to suggest this trend has been reversed. Increased surveillance by many states, including democracies, contributed to this trajectory’s momentum. For example, governments in France, Turkey, and the United Kingdom said “yes” to increased surveillance.
In the midst of this decline, Snowden damaged the U.S. government’s international standing, created rifts among democracies, and harmed U.S. technology companies. The Snowden-triggered move by tech companies toward stronger encryption pits democratic governments against the private sector and civil society in a looming zero-sum brawl. Meanwhile, unperturbed by Snowden, autocratic countries exploit the disarray within and among democracies, bash the hyposcrisy of Internet freedom’s champions, conduct intrusive surveillance at home and abroad, and strengthen their manipulation, control, and censorship of digital communications. Given these facts, the UN resolution on the right to privacy in the digital age, which represents global progress for Snowden, does not reflect consensus among states on the relationship between surveillance and human rights.
An unprincipled but ineffective program is dead. Long-standing controversies about large-scale surveillance programs targeting foreigners continue. Government surveillance powers are increasing, democracies are bitterly divided, and Internet freedom is in retreat. Whether these outcomes mean we have, as a country and an international community, reached a better place is hotly debated—a reminder that history’s arc is longer than two years.
This post appears courtesy of CFR.org.
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