Edward Snowden or the NSA: Who Violated Your Privacy More?

If the whistleblower broke the Privacy Act, he deserves to be prosecuted. But he's not the only lawbreaker.

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?

I'll never see the world like Wittes. After a year of revelations about global mass surveillance on a scale unprecedented in history, it is astonishing to see a commentator who directs his most scathing invective about privacy violations at Snowden:

Ultimately, if you’re not outraged by what Snowden did here, it’s because you’re applying a certain situational ethics. It’s because the privacy of that woman in Australia—and though Gellman delicately kept her name out of the story, her whole social world will know who she is—just doesn’t matter very much compared to the need to expose NSA activities. If you’re okay with dumping in the lap of a journalist 160,000 of the most personal conversations a signals intelligence agency can collect, then stop whining to me about “bulk” or “mass” collection. And if you’re okay with Snowden—in the unfettered exercise of his unlimited discretion—choosing Gellman as the sole check and balance on the disclosure of personal data—Gellman who, unlike NSA, has no statutory standard to live up to and no oversight from Congress or the courts—then stop telling me this is about the rule of law. Because you don’t really mean it.

Much as I understand why Snowden leaked that Australian woman's email, it does make me uncomfortable. I'm even more uncomfortable with an agency that feels justified in seizing, searching and storing the intimate communications of countless millions, the vast majority of them innocent, to perhaps make me infinitesimally safer from a terrorist threat statistically less likely to kill me than lightning.

Wittes is fine with it because when the words "signals intelligence" are invoked he apparently suspends normal standards of decency, proportion, and fundamental rights. He's fine with America recording every cell-phone call in the Bahamas because ... I don't know. Maybe he can explain it to us when he's done lamenting the invasion of privacy that the anonymous Australian woman has suffered. Does it matter to Wittes if people in the Bahamas would rather entrust their phone recordings to Gellman than the NSA? I suspect not.

Wittes invokes the rule of law as a challenge to Snowden defenders. As I've acknowledged here, Snowden indeed seems to have broken a law that I consider to be both legitimate and important. Now I've got a challenge for Wittes. Can he point me to his righteous calls for Bush and Obama administration officials who have violated the law in the course of the War on Terrorism—and there are many—to be held legally accountable? Could he give me a list of the Bush and Obama administration officials that he'd like to see prosecuted and jailed for their lawbreaking?