On June 5, The Guardian published its first article utilizing information they gained from Edward Snowden, a contractor for the National Security Agency, who claimed he had revealed “unconstitutional” actions conducted by the U.S. government.
Ron Sievert, senior lecturer in the international affairs program at the Bush School, who has worked with the FBI and U.S. intelligence agencies, said Snowden’s actions of leaking the information was illegal, but the information he leaked was not gathered unconstitutionally.
The information disseminated by Snowden detailed how and where the NSA collects preliminary investigation information. According to the Associated Press, Snowden leaked the information to expose the government’s “criminality.”
Yet, Sievert said the information that Snowden declared necessary to expose was already transparent and legal under the Electronic Communications Privacy Act. Confirmed by the rulings of multiple Supreme Court cases, the NSA has the ability to gain access to phone records, email records and other basic information.
This information is already given to third party companies such as phone and Internet service providers. This precedent, set by these third parties, allowed the Supreme Court to grant access to law enforcement officials with cases such as Smith v. Maryland.
“So [the supreme court is] basically saying, ‘You’re giving this stuff to other people,'” Sievert said. “And when you give stuff to other people, that is, a third party, you can’t have an expectation of privacy like you would with what you don’t share with other people.”
The information, however, may not be accessed without following the respective legislative guidelines. When organizations such as the NSA receive information of suspicion, but not enough to justify probable cause, they may submit an affidavit to either a judge or a grand jury.
“If you receive information from an informant, it may not rise to the level of probable cause, but you would be completely derelict in your duty if you ignored it and did nothing,” Sievert said. “So, you have to do some initial preliminary checks. You don’t have probable cause, but you are acting in a way that is reasonably related to a legitimate criminal or intelligence investigation.”
Seivert said all of the surveillance that Snowden leaked followed the correct, legal protocol.
With this preliminary affidavit, the NSA may only access basic information such as phone and email records – not content. This information is the same, which is available to third party companies.
“I just want to look at who you’re calling or who you’re emailing, not the content,” Sievert said. “To get that, I have to show the judge … that I’m not just accessing your phone records because you’re my neighbor and I’m mad at you. I’m doing it because it’s legitimately related to an investigation.”
Regardless of intentions, government officials said some of the details leaked by Snowden have had negative effects on defense strategies, the Associated Press reported.
“[Snowden] has basically alerted people who are enemies of this country… (like) al-Qaida, about what techniques we have been using to monitor their activities and foil plots, and compromised those efforts, and it’s very conceivable that people will die as a result,” said Sen. Angus King of Maine.
Sievert said it is possible Snowden may also be in position of even more sensitive information, which, if disclosed, could have greater negative consequences to U.S. intelligence agents.
Kim Doll, a first-year veterinary medicine student, said the potential harm outweighs any positive impacts she believes Snowden’s actions might have.
“When the actions of a whistle-blower put the lives of foreign intelligence operatives in jeopardy, they risk putting the lives of the entire country in jeopardy, which is unacceptable,” Doll said. “Mr. Snowden’s pursuit of revealing the truth to the world should not be deemed more important than protecting the lives of those serving their country.”
Changes in the structure of intelligence community after 9/11 could have also given Snowden greater access to sensitive material, Sievert said.
“In the intelligence community, we always try to compartmentalize everything and act on a need-to-know basis, but on the other hand, since 9/11, we have also tried to increase sharing, so that decreases compartmentalization and leads to a situation where people may know things they really didn’t need to know, and if they’re acting nefariously they could do bad things,” Sievert said.
Beyond the implications of the NSA leaks, Sievert said Snowden’s declarations of injustice in the NSA were misguided.
“He claimed it was unconstitutional – since when is he a Supreme Court judge?” Sievert said. “And he makes these claims, and then the media in the first day or two just said what he said word for word without even questioning whether he might be full of it.”
Though nothing he reported on was illegal, Sievert said, concepts of privacy may be changing throughout the nation.
“Now, there is, I think and I have actually discussed this with my classes for the last two or three years, there may be changing expectation of privacy in society,” Sievert said. “They may expect that this data should not be shared.”
In reference to the dissemination of information to third party companies, Doll said she believes this should not set precedence for government entities. She also said she believes consent forms for Internet and phone providers should be more explicit.
“If this precedent is to be the guiding principle for government access, I feel that there should be a more apparent notification when citizens agree to release their information to third parties,” Doll said.
Members of the public are also saying surveillance power within the government may be easily abused or corrupted, yet Sievert said this is not occurring on a structural level. Individuals may act in illegal ways, but the problem is not pervasive throughout intelligence organizations.
“The answer to that is not to eliminate the authority, the answer is to find the individual who abuses their authority, identify them, and punish them,” Sievert said.