Why the Snowden Leak Is Such a Big Deal

In a rare public filing in the secret Foreign Intelligence Surveillance Court (FISC), the Justice Department today urged continued secrecy for a 2011 FISC opinion that found the National Security Agency's surveillance under the FISA Amendments Act to be unconstitutional. Significantly, the surveillance at issue was carried out under the same controversial legal authority that underlies the NSA’s recently-revealed PRISM program.

EFF filed a suit under the Freedom of Information Act in August 2012, seeking disclosure of the FISC ruling. Sens. Ron Wyden and Mark Udall revealed the existence of the opinion, which found that collection activities under FISA Section 702 "circumvented the spirit of the law” and violated the Fourth Amendment's prohibition on unreasonable searches and seizures. But, at the time, the Senators were not permitted to discuss the details publicly. Section 702 has taken on new importance this week, as it appears to form the basis for the extensive PRISM surveillance program reported recently in the Guardian and the Washington Post.

The government sought to block EFF’s FOIA suit by arguing that only the FISC, itself, can release the opinion. In an effort to remove that roadblock, EFF filed a motion with the FISC on April 22 seeking the surveillance court’s consent to disclosure, should the document be found to be otherwise subject to release under FOIA. In its response filed with the FISC today, the government offers a circular argument, asserting that only the Executive Branch can de-classify the opinion, but that it is somehow prohibited by the FISC rules from doing so.

World leaders seek answers on US collection of communication data

Data protection chiefs and analysts in EU, Pakistan, South Africa and Canada express concerns at revelations in leaks

Leading Europeans, from Angela Merkel down to information chiefs across the continent, are lining up to grill American counterparts on the Prism surveillance programmes, amid mounting fury that the private information of EU nationals will have been caught up in the data dragnet.

With Merkel set to bring up the issue with Barack Obama next week, and the European commission vice-president, Viviane Reding, eager to grill US officials at a meeting in Dublin on Friday, the issue looks set to dominate a week of summitry. Reding, who is responsible for data protection in Europe, is to seek clarification on whether the access to personal data in the Prism programme is limited to individual cases, is based on concrete suspicion or if wider sets of data are being accessed.

Peter Schaar, Germany's federal data protection commissioner, told the Guardian that it was unacceptable for the US authorities to have access to EU citizens' data and that the level of protection was lower than that guaranteed to US citizens.

"So far, the US has no adequate level of data protection guaranteed in law and with independent oversight, like in Europe," he told the Guardian. "It's essential for me that we cannot ignore anymore the question of what happens with the data of the private sector if it's collected by US or third-party companies and public authorities want to surveil this data.
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http://www.guardian.co.uk/world/2013/jun/10/european-reaction-us-surveillance-revelations

Antonello Soro, head of the Italian data-protection authority, said he was "very concerned" by the consequences of the surveillance on the privacy of European and Italian citizens.

"A gathering of data of this capacity, so indiscriminate and generalised, going beyond any evidence of crime, would not be legal in Italy and, if it were to happen, would be contrary to the principles of our legislation and would represent a very serious violation," he told the Guardian in a statement.

http://www.guardian.co.uk/world/2013/jun/10/european-reaction-us-surveillance-revelations

“Now I will tell you the answer to my question. It is this. The Party seeks power entirely for its own sake. We are not interested in the good of others; we are interested solely in power, pure power. What pure power means you will understand presently. We are different from the oligarchies of the past in that we know what we are doing. All the others, even those who resembled ourselves, were cowards and hypocrites.

The German Nazis and the Russian Communists came very close to us in their methods, but they never had the courage to recognize their own motives. They pretended, perhaps they even believed, that they had seized power unwillingly and for a limited time, and that just around the corner there lay a paradise where human beings would be free and equal.

We are not like that. We know what no one ever seizes power with the intention of relinquishing it. Power is not a means; it is an end. One does not establish a dictatorship in order to safeguard a revolution; one makes the revolution in order to establish the dictatorship. The object of persecution is persecution. The object of torture is torture. The object of power is power. Now you begin to understand me.”

― George Orwell, 1984

from Daniel Ellsberg

In 1975, Senator Frank Church spoke of the National Security Agency in these terms:

"I know the capacity that is there to make tyranny total in America, and we must see to it that this agency and all agencies that possess this technology operate within the law and under proper supervision, so that we never cross over that abyss. That is the abyss from which there is no return."

The dangerous prospect of which he warned was that America's intelligence gathering capability – which is today beyond any comparison with what existed in his pre-digital era – "at any time could be turned around on the American people and no American would have any privacy left."

That has now happened. That is what Snowden has exposed, with official, secret documents. The NSA, FBI and CIA have, with the new digital technology, surveillance powers over our own citizens that the Stasi – the secret police in the former "democratic republic" of East Germany – could scarcely have dreamed of. Snowden reveals that the so-called intelligence community has become the United Stasi of America.

So we have fallen into Senator Church's abyss. The questions now are whether he was right or wrong that there is no return from it, and whether that means that effective democracy will become impossible. A week ago, I would have found it hard to argue with pessimistic answers to those conclusions.

But with Edward Snowden having put his life on the line to get this information out, quite possibly inspiring others with similar knowledge, conscience and patriotism to show comparable civil courage – in the public, in Congress, in the executive branch itself – I see the unexpected possibility of a way up and out of the abyss.

Pressure by an informed public on Congress to form a select committee to investigate the revelations by Snowden and, I hope, others to come might lead us to bring NSA and the rest of the intelligence community under real supervision and restraint and restore the protections of the bill of rights.

Snowden did what he did because he recognised the NSA's surveillance programs for what they are: dangerous, unconstitutional activity. This wholesale invasion of Americans' and foreign citizens' privacy does not contribute to our security; it puts in danger the very liberties we're trying to protect.