Over at Lawfare, Ben Wittes argues that Edward Snowden violated the Privacy Act when he gave the Washington Post the private communications of individuals spied on by the NSA. The law in question states:
Any officer or employee of an agency, who by virtue of his employment or official position, has possession of, or access to, agency records which contain individually identifiable information the disclosure of which is prohibited by this section or by rules or regulations established thereunder, and who knowing that disclosure of the specific material is so prohibited, willfully discloses the material in any manner to any person or agency not entitled to receive it, shall be guilty of a misdemeanor and fined not more than $5,000.
Snowden's leak does seem to violate this law. Under the circumstances, a misdemeanor conviction and a $5,000 fine seems like a reasonable penalty—and since he's a student of civil disobedience who believes in the importance of privacy, I suspect Snowden would plead guilty to the misdemeanor to underscore the law's importance, assusiming he were also given the Espionage Act clemency he deserves for exposing surveillance that massively violates human rights, the Fourth Amendment, and the separation of powers. That revelation fulfilled his obligation to protect the Constitution from enemies both foreign and domestic.
What do you say, Mr. Snowden? Would you take that deal, despite the recent custom of granting retroactive immunity to those who violate the privacy of Americans?
Of course, I would understand if, Snowden offered to pay the $5,000 fine only if charges were also brought and, if convictions were secured, punishments meted out to James Clapper for perjury, various CIA officials for torture, and Leon Panetta for revealing classified information about the military unit that killed Osama bin Laden. After all, I'm sure that Snowden, like Wittes, wouldn't want to send the message that breaking the law in service of those in power goes unpunished in America, while "the rule of law" is only invoked to punish those who criticize the powerful.
Happily, the latest Snowden leak has finally convinced Wittes, who is a senior fellow at the Brookings Institution, that the NSA's collection of the private communications of innocent people constitutes a massive violation of civil liberties—this after insisting for so many months that the NSA and its contractors had perpetrated no serious abuses.
Wittes and I happen to disagree about which acts by current or former NSA employees and contractors are most egregious.But now that we both agree serious abuses have occurred perhaps we can work on reforms.
"NSA has an elaborate set of procedures and compliance mechanisms designed to ensure that the data it collects are not misused by its personnel—procedures which clearly failed in this case," Wittes writes. Slowly but surely, he's moving toward this insight: The NSA's existing mechanisms are woefully inadequate, but no procedures, however elaborate, can adequately safeguard a government database containing the intimate secrets of millions of innocents. Keeping one for years on end is hubristic folly. Horrible violations are inevitable.
The national-security officials who say otherwise are the same people who saw neither Chelsea Manning nor Snowden coming. For all they know, the Chinese have already obtained the intimate communications of various American CEOs from non-whistleblower thieves who go about their business more quietly. In Snowden's case, even after he copied these sensitive communications onto a hard drive, government officials either had no idea what he took or misled us into thinking that he couldn't have accessed what the Post reported. Do you think they'd tell us about a more serious breach?