by David P. Fidler
What a way to mark an anniversary. On June 5, 2015, two years has passed since Edward Snowden, a former contractor for the National Security Agency (NSA), began disclosing classified documents about NSA surveillance programs. The week leading up to this second anniversary reinforced the historic nature of the actions Snowden began to take in early June 2013. Even Hollywood could not have topped what happened in the past five days in terms of highlighting Snowden’s impact and continued national and international prominence.
The week began with the U.S. Senate failing to agree on legislation to extend or replace the statutory provision the U.S. government used—Section 215 of the USA PATRIOT Act—to operate the bulk domestic telephone metadata surveillance program Snowden disclosed in his first revelation on June 5, 2013. This provision expired on June 1, ending the telephone metadata program. The legislative failure to reauthorize Section 215 or adopt new legislation before Section 215 lapsed would never have occurred without Snowden’s exposure of this surveillance program.
Then, after having just failed to enact legislation, the Senate passed on June 2 the USA FREEDOM Act, which the House of Representatives previously adopted. This new law transforms how the U.S. government can access and use telephone metadata for surveillance purposes. For example, the Act does not permit the U.S. government to receive and store domestic telephone metadata in bulk, but instead requires the government to obtain an order from the Foreign Intelligence Surveillance Court to gain access to telephone metadata held by companies and suspected of being connected to specific surveillance targets. The USA FREEDOM Act represents the first legislative change to U.S. surveillance law since Snowden began his disclosures, and it would not exist but for Snowden’s controversial actions.
On June 4, the New York Times published a new story based on documents disclosed by Snowden. The story asserted that “[w]ithout public notice or debate, the Obama administration has expanded the National Security Agency’s warrantless surveillance of Americans’ international Internet traffic to search for evidence of malicious computer hacking[.]” The story caused controversy. Snowden supporters emphasized the revelations as more evidence of secretive U.S. government surveillance threatening the privacy rights of U.S. citizens. Other experts criticized the Times for publishing a misleading story that revealed nothing new about how the U.S. government was exercising established legal authorities to conduct surveillance against foreign targets, including foreign governments.
Later on June 4, Snowden published an op-ed in the New York Times to mark the second anniversary of the start of his disclosures. In it, he declared that responses to his revelations in the United States and around the world had unleashed “the power of an informed public.” Reflecting on the global impact of his actions, Snowden wrote:
Ending the mass surveillance of private phone calls under the Patriot Act is a historic victory for the rights of every citizen, but it is only the latest product of a change in global awareness. Since 2013, institutions across Europe have ruled similar laws and operations illegal and imposed new restrictions on future activities. The United Nations declared mass surveillance an unambiguous violation of human rights. In Latin America, the efforts of citizens in Brazil led to the Marco Civil, an Internet Bill of Rights. Recognizing the critical role of informed citizens in correcting the excesses of government, the Council of Europe called for new laws to protect whistle-blowers.
Although Snowden had a big week, what transpired does not settle controversies about the propriety of Snowden’s actions or resolve debates still raging about how the United States and other democracies protect national security and respect individual rights in an age where digital technologies are ubiquitous. Indeed, what has happened in the United States and around the world since early June 2013 is more complicated than pro-Snowden and anti-Snowden narratives suggest. What the past few days has done is force us, once again, to grapple with unprecedented technological challenges to enduring commitments to national security and individual liberty at home and abroad.