Government Secrecy Versus National Security: a white Paper

Government Secrecy Versus National Security:

A White Paper
Cate Sullivan
MGMT 302: The Stakeholders Organization
December 18, 2014

Table of Contents
Executive Summary………………………………………………………....3

Big Name Government Whistleblowers…………………………………….4

The NSA and Other Intelligence Agencies………………………………….5

Security versus Privacy………….......……………………………………....7

The Fight Against Governmental Authority………………….......………....8

Edward Snowden- Legally not a Whistleblower…....……………………...10

Democratic Accountability and Consent…………………………………...13

A Combined Recommendation…………………………...………………..14

Conclusion………………………………...……………………………….15

Footnotes……………………..……………………………………………16

Executive Summary
Information released by “whistleblower” Edward Snowden in June 2013 has drawn public attention and controversy to the question of whether national security is more important than citizen privacy. There has been significant attention given to the National Security Agency’s (NSA) system of collecting the communications of both United States citizens and non- U.S. citizens. This paper will explain the purpose and responsibilities of the NSA and other intelligence agencies, as well as PRISM, the program through which the NSA collects the digital communications and information of individuals. The laws and policies, such as The Patriot Act and The Foreign Intelligence Surveillance Act, which authorize the government to perform such actions, will be discussed in depth. Additionally, the laws and amendments that do or do not protect government whistleblowers will be explained, as will the reason for which Mr. Edward Snowden is not protected for his release of government documents. Finally, a recommendation for how to approach the government surveillance versus citizen privacy debate will be provided.

Big Name Government Whistleblowers
Is a government whistleblower a hero or traitor? Consider three famous cases of Daniel Ellsberg, Bradley Manning and Edward Snowden. Some consider these individuals to be whistleblowers based on their actions that revealed secret government behavior to the public. During the 1970s, Ellsberg leaked top-secret Pentagon Papers detailing the history of U.S. policy in Vietnam,¹ and was sentenced to 105 years in prison for theft and espionage, but was freed after a mistrial.² In 2013 Manning was found guilty of 20 of the 22 charges he faced, mostly for espionage, theft and fraud, as well as violations of the U.S. Espionage Act, for releasing government documents to WikiLeaks in 2010.³ Finally, former National Security Agency contractor, Edward Snowden, was charged with theft of government property, as well as “unauthorized communication of national defense information” and “willful communication of classified communications intelligence information to an unauthorized person,” under the Espionage Act in 2013. Snowden and his supporters argue that the NSA violated the United States Constitution through engaging in mass surveillance of American citizens. ⁴

Such information released by whistleblowers, particularly Edward Snowden, has drawn public attention and controversy to the NSA’s system of collecting data from private communications of both non- U.S. and U.S. citizens without requiring individual warrants and without probably cause. Those who support the massive powers of the U.S. government view whistleblowers, such as Edward Snowden, as criminals, while those who support citizen privacy and governmental honesty see the whistleblowers as heroes.⁵ The question becomes whether national security is more important than citizen privacy, and where the limits, if any, should be drawn.

The NSA and Other Intelligence Agencies

The National Security Agency (NSA) is a government agency responsible for collecting, intercepting, processing, and disseminating intelligence information from electronic sources for national foreign intelligence and counterintelligence purposes. The Agency is additionally responsible for preventing foreign attackers from gaining access to imperative classified security information.⁶ The Agency distinguishes itself from other government security and intelligence agencies such as the Central Intelligence Agency (CIA) and the Federal Bureau of Investigation (FBI) through primarily gathering information through electronic sources. Meanwhile, the CIA is a U.S. spying agency that collects, analyzes, and disseminates information regarding foreign nations that is gathered through signals and human intelligence sources.⁷ On the other hand, the FBI is the intelligence and law enforcement agency responsible for understanding threats to national security and restricting actions intended to harm the United States.⁸ While the NSA is officially a public agency, it has numerous overlapping partnerships with private sector corporations, such as Northrop Grumman, as well as Booz Allen Hamilton, for whom Edward Snowden worked. ⁹

The government’s surveillance programs have infiltrated most of the communications technologies that our society relies on. Two laws largely enable such actions by the government: The Patriot Act and the Foreign Intelligence Surveillance Act (FISA) Amendments. While the Foreign Intelligence Surveillance Court (FISC) oversees the government’s surveillance activities, it operates in near-total secrecy through one-sided procedures that heavily favor the government.¹⁰ Therefore, secret government documents published by the media in 2013 confirm that the NSA and the government is mass collecting phone “metadata of all U.S. customers” under the guide of the Patriot Act.¹¹

Government employees are protected by The Whistleblower Protection Act, which affords “confidentiality and protection from retaliation to federal employees, former employees, or applicants who report allegations of gross mismanagement, fraud, abuse of authority.” Therefore, whistleblowers do have the right to be protected for revealing information. ¹² However, the Whistleblower Protection Act does not apply to the intelligence community,¹³ which includes private contractors such as Edward Snowden. Snowden claims that he made “‘tremendous efforts to report NSA abuses to colleagues, but due to the limitation of the Whistleblower Protection Act- which does not cover contractors- he had little choice but to go to the press.’”¹⁴ Legal experts told the Washington Post about a separate law called the Intelligence Community Whistleblower Protection Act. This law allows national-security whistleblowers to release classified information to an inspector general or member of a congressional intelligence committee, but does not actually protect whistleblowers from “retaliation.” ¹⁵

The technical means used to intercept communication include the NSA’s tapping of Internet servers, satellites, underwater fiber-optic cables, local and foreign telephone systems, and personal computers.¹⁶ The agency directly taps into fiber-optic lines used to transmit international communications, redirects messages into NSA repositories when they “traverse the U.S. system,” and makes Internet companies and telecommunication companies pass on information to the NSA that they have previously collected on their customers.¹⁷
Security versus Privacy

The attacks of September 11, 2001 provided an opportunity for the government to pass both the Patriot Act and the Department of Homeland Security, which provide the federal government with unprecedented, so-called “preventive” powers to block potential threats to the nation and its citizens. ¹⁸ As a result, the nature of surveillance has changed dramatically over the years. The original form required an evidence-based court order to intercept the communications of an individual suspect. Surveillance was authorized if it was necessary to capture potential terrorists, and the infringement on liberty was proportionate to the nature of the crime at hand. Today, however, surveillance agencies intercept massive quantities of communications from millions of people and then search through this database for information related to terrorist suspects.¹⁹

When the NSA revelations were first released in the early summer of 2013 due to Edward Snowden, the United States government tried to defend its actions by arguing that, unlike foreign nationals, American citizens are protected from warrantless NSA surveillance. President Obama and his top officials denied statements that the NSA continuously intercepts the communications of American citizens without probable cause or warrants justifying such surveillance. ²⁰ Such revelations have caused citizens to become more concerned about whether state surveillance policies implemented to counter the threat of terrorism are actually interfering with their individual rights.

The system used by the NSA to gain access to private communications of users of popular Internet services is called PRISM, and is governed by Section 702 of the Foreign Intelligence Surveillance Act. Information leaked by Edward Snowden reveals that PRISM continues to enable “collection directly from servers” such as Microsoft, Yahoo, Google, Facebook and other online companies.²¹ The program facilitates extensive, in-depth surveillance on live communications and stored information. The law allows for the targeting of any customers of participating firms who live outside the United States, or those Americans whose communications include people outside of the U.S without the requirement of a search warrant for either party involved. While companies are legally obliged to comply with requests for users’ communications under United States law, controversy arises based on the fact that the PRISM program allows the intelligence services direct access to companies’ servers. Ultimately, the program allows for the NSA, the world’s largest surveillance organization, to obtain communication records without having to first request them from the service providers, and without having to obtain individual court orders. ²²

The Fight Against Governmental Authority

There is much debate regarding the amount of government power and the transparency of democracy- basically, whether citizens’ privacy is more or less important than national security surveillance, and if the government has overstepped their power in this area.²³ Some, such as Dianne Feinstein, argue that the metadata collection of all Americans’ telephone records is not surveillance because it does not collection the content of any communication.²⁴ Meanwhile, the American Civil Liberties Union is a non-profit, non-partisan public interest law firm that advocates and protects United States the individual liberties and rights of the American people. The Union aims to make it clear that they do not defend topics because they agree with them, but instead because they believe in the “right to free expression and free assembly.” One advocacy topic that they focus on is national security policies that are consistent with the Constitution, the rule of law, and fundamental human rights. ACLU continues to push Congress to examine U.S. surveillance laws and amend those that are found to be unconstitutional or that have been abused, including changes to the Foreign Intelligence Surveillance Act.²⁵

The Patriot Act grants government with the authority to collect a record of all phone calls made by individual American citizens on an ongoing daily basis. Additionally, section 215 of the Foreign Intelligence Surveillance Act, as interpreted by the FISC, provides the NSA with authorization to collect records from telephone services providers. ACLU argues that such activity exceeds the authority given to government, as well as violates the right of privacy, which is protected by the Fourth Amendment, in addition to the right to freedom of speech protected by the First Amendment. ACLU filed two motions with the Foreign Intelligence Surveillance Court asking it to release its opinions on the collection of Americans’ data by the NSA to the public. In 2011, ACLU filed a lawsuit demanding that the government release information about its use and interpretation of citizen monitoring, as well as other unconstitutional provisions of the Patriot Act. ²⁶

The FISA Amendment Act gives the NSA almost unchecked power to monitor Americans’ phone calls, text messages, and emails. The ACLU challenges that the FISA Amendment Act violates both the Fourth Amendment and Article III of the Constitution because it permits the government to intercept the international communications of U.S. residents without warrant or individualized court review. ²⁷

The ACLU continues to fight for greater transparency and public access to the Foreign Intelligence Surveillance Court (FISC)- the secretive court that oversees government surveillance programs. The FISC’s initial purpose was to evaluate individual surveillance applications to determine if there was probable cause to believe that a specific individual was a threat. Since 1978, it is evident that this court’s responsibilities have shifted to oversee surveillance programs and assess their constitutionality without the public’s input. The ACLU petitions for access to the FISC, and argues that secret law “has no place in democracy.” They argue that, under the First Amendment, the public has a qualified right of access to FISC opinions concerning scope, meaning, or constitutionality of surveillance laws. “We all have a right to know, at least in general terms, what kinds of information the government is collecting about innocent Americans, on what scale, and based on what legal theory.” ²⁸
Edward Snowden- Legally not a Whistleblower

Those who believe that Edward Snowden has shed light on improper government actions believe that he should be seen as a whistleblower. However, it is unlikely that he will be able to receive whistle-blower protection. The general whistleblower laws apply to government employees who expose wrongdoing, by protecting them from retaliatory actions by their employer. Instead, the Intelligence Community Whistleblower Protection Act law applies to people who hold positions similar to Snowden’s as a NSA contractor.

Legal experts say that the Intelligence Community Whistleblower Protection Act offers Snowden little protection. First, he did not expose the kinds of actions covered by whistle-blower protections- illegal conduct, fraud, waste or abuse. While there is argument regarding whether or not he revealed illegal or unconstitutional facts, for now, what he exposed is considered illegal conduct. Second, the Federal Whistleblower Protection Act protects public disclosure of “a violation of any law, rule, or regulation “only” if law does not specifically prohibit such disclosure.” Based on this, Snowden would only be able to claim whistleblower protection if he had voiced his concerns to the NSA’s inspector general or to a member of one of the congressional intelligence committees. ²⁹

The Whistleblower Protection Enhancement Act of 2012 strengthened whistleblower protections for federal whistleblowers. To ensure that federal employees come forward to disclose information that makes the government more efficient, transparent, and accountable, this Act removes judicially- created loopholes that narrowed the scope of protecting whistleblowers under the initial Whistleblower Protection Act of 1989.³⁰

President Barack Obama signed presidential Policy Directive 19, which revised the 1989 Whistleblower Protection Act, on October 10, 2012. The Act is designed to protect whistleblowers that have access to classified information. Section A of the PPD specifically prohibits retaliation, while Section B prohibits retaliation by taking away an employee’s access to classified information. However, PPD19 never exactly defines what “employee” entails, so it is unclear whether this term includes “contractors,” such as Edward Snowden. ³¹

It is quite complicated to determine whether Snowden is exempt or not under PPD19. Dan Meyer, executive director for intelligence community whistleblowing and source protection at the Office of the Director of National Intelligence, stated, “supervisors and managers need to understand that whistleblowing is a lawful mission in the national security interest.” ³² Meyer, a former federal whistleblower himself, is the individual responsible for coordinating policy regarding PPD19 in the intelligence community. He spoke about his personal interpretation of PPD19: “Contractors are covered under section B of PPB19…Under Section A, there is no executive order referenced in there that would allow me to go to find a contractor provision. Under this interpretation, Snowden is incorrect in stating that contractors are specifically exempt under PPD19, since at least Section B is applicable to this group. However, Section A does not appear to cover contractors. While Snowden cannot necessarily make the claim that there are no protections for contractors, he may have been correct in arguing that there appear to be no clear protections, especially from retaliation. ³³

Since Snowden’s release of NSA secrets, the rules for whistleblowers have changed. President Obama has issued a directive, which aims to give greater protection to whistleblowers working for intelligence agencies since they do not have protections that are provided to other federal employees. The directive allows individuals who try to blow the whistle while still working at the NSA the chance to appeal to inspectors general at other intelligence agencies. However, a hearing is not guaranteed, and the protections do not extend to all individuals. Under this directive, Edward Snowden would not be protected since he was an outside contractor of the NSA.³⁴ Due to the NSA’s increasing privatization of activities through contracting work out to private organizations, it seems as though they are almost setting individuals up for failure should they chose to come forward with secret information. While there are whistleblower laws in place, it seems as though these laws do everything possible to prevent protecting those individuals who are likely to come forward with information, but seem to be in place so that the government cannot be criticized for not have protective measures in place.

Democratic Accountability and Consent

Glenn Greenwald’s book, No Place to Hide: Edward Snowden, the NSA, and the U.S. Surveillance State, uses reproduced secret documents to illustrate how far the NSA has gone to collect the private information of citizens. Greenwald shows that the scope of the NSA’s surveillance exceeds not only our imagination, but also the agency’s capacity to store and analyze all the information that they have obtained. While Greenwald is one of the few people that obtained information on the NSA’s unprecedented abuse of power through documents from Snowden himself, it is unlikely that absolutely everything that the author says about the government and about the NSA is true.

One argument that Greenwald strongly emphasizes is that government mass surveillance limits citizens’ freedom. It is impossible that the NSA and other agencies are able to vet each and every phone conversations made by individual Americans. However, what makes the surveillance system effective in controlling human behavior is the knowledge that one’s words and actions are capable of being monitored. The system therefore anticipates that citizens will be compliant and obedient to their country through fear of being watched and questioned. Basically, one must refrain from provoking the authorities that wield surveillance power in order to be considered free of wrongdoing.

Greenwald additionally examines the purpose of the Fourth Amendment, which is to prohibit certain police actions, even though they may reduce crime. The author mentions that, while some of the documentation provided by Snowden was directly connected to terrorism suspects, that the majority of the information “had nothing to do with national security. The documents left no doubt that the NSA was equally involved in economic espionage, diplomatic spying, and suspicion-less surveillance.”³⁵

The author additionally provides an in-depth discussion of the methods used by the NSA to obtain information from citizens. Regardless of the controversy around Greenwald’s book, the author does make one incredibly valid point- “democracy requires accountability and consent of the governed, which is only possible if citizens know what is being done in their name. ³⁶ Greenwald’s book helps readers understand why and how the government and the NSA obtains information from citizens, and illustrates the author’s biased against the government’s actions. ³⁷
A Combined Recommendation

Considering the topics outlined, it clear that there is no single recommendation for this issue. Instead, an appropriate recommendation includes a combination of the previously discussed proposals. Greenwald’s most valid argument is that “democracy requires accountability and consent of the governed, which is only possible if citizens know what is being done in their name.” In order for the government and its citizens to be on the same page, it is imperative that the government increases its transparency. President Barack Obama’s directive aiming to give whistleblowers working for intelligence agencies is a step in the right direction. However, there are limitations in this directive, such as whistleblowers not being guaranteed a hearing. In order for this directive to be more effective, individuals who blow the whistle while still working at the NSA and similar government agencies should be guaranteed a hearing and that the intentions of the whistleblowers should be taken in to consideration. Regardless of who is to blame, the NSA and the government must be held accountable and should be expected to take responsibility for their actions. Rather than trying to destroy a whistleblower that comes forward with information that citizens have a right to know about, the government must communicate the purpose for their actions with citizens in order to create the strongest sense of trust and patriotism. Finally, the government should only be able to collect the information of individuals who they adequately suspect pose a threat to our nation only after following the proper procedures necessary to obtain a search warrant.

Conclusion

An investigation performed by The Washington Post using information provided by Edward Snowden concluded that nine out of ten online account holders whose information had been collected by the NSA’s surveillance program were not suspected of terrorist activities. This investigation of roughly 160,000 individual accounts concluded that the NSA’s foreign targets were far outnumbered by ordinary Web users whose content was collected as a result of the NSA’s surveillance program.³⁸ The NSA says that it is vital to collect information on citizens in order to prevent another terrorist attack like September 11^th, however, based on the Washington Post’s investigation, is this possible if it is mainly collecting non-threatening information? If the NSA had the magnitude of information that it has today, would it have been able to sift through the volume of collected information, identify the potential terrorists, and prevent their actions in time to prevent the massive devastation of that day?

Footnotes

1^ Thompson, Nicholas. "From Daniel Ellsberg to Edward Snowden." New Yorker, 10 June 2013. Web. 7 Dec. 2014. < http://www.newyorker.com/news/news-desk/from-daniel-ellsberg-to-edward-snowden>.

2^ "Daniel Ellsberg Expected Life In Prison After Leaking Pentagon Papers." Radio Interview. All Things Considered, NPR. 13 June 2011. Web. 7 Dec. 2014. < http://www.npr.org/blogs/thetwo-way/2011/06/13/137156974/daniel-ellsberg-expected-life-in-prison-after-leaking-pentagon-papers>.

3^ Smith, Matt, and Paul Courson. "WikiLeaks Source Manning Gets 35 Years, Will Seek Pardon." CNN U.S. Cable News Networks, 22 Aug. 2013. Web. 7 Dec. 2014. .

4^ Finn, Peter, and Sari Horwitz. "U.S. Charges Snowden with Espionage." The Washington Post 21 June 2013. The Washington Post. Web. 8 Dec. 2014. .

5^ O'Neill, Ben. "The Ethics of Whistleblowing." Mises Daily. Mises Institute, 8 July 2013. Web. 8 Dec. 2014. .

6^ "National Security Agency." Electronic Frontier Foundation. Web. 14 Dec. 2014. .

7^ Szoldra, Paul. "These 17 Agencies Make Up The Most Sophisticated Spy Network In The World." Business Insider. Business Insider, Inc, 11 May 2013. Web. 14 Dec. 2014. < .

8^ "Our Strength Lies in Who We Are." Intelligence.gov. Web. 14 Dec. 2014. .

9^ Greenwald, Glen. "Collect It All." No Place to Hide: Edward Snowden, the NSA, and the U.S. Surveillance State. New York: Metropolitan Books- Henry Holt and Company, LLC, 2014. Page 101. Print.

10^ “National Security.” American Civil Liberties Union. ACLU, Web. 7 Dec. 2014. .

11^ "NSA Spying on Americans." Electronic Frontier Foundation. Web. 7 Dec. 2014. .

12^ Meyerson, Collier. “The Whistleblower Protection Act is not created equal.” MSNBC 13 Sept. 2013. MSNBC.Com. 8 Dec. 2014. .

13^ Myerson, 2013.

14^ Gabbatt, Adam. "'Not All Spying Is Bad': Snowden Calls for Whistleblower Protection in Q&A." The Guardian 23 Jan. 2014. Guardian News and Media Limited. Web. 8 Dec. 2014. .

15^ Kessler, Glenn. "Edward Snowden's Claim That He Had 'no Proper Channels' for Protection as a Whistleblower." The Washington Post 12 Mar. 2014. The Washington Post. Web. 8 Dec. 2014. .

16^ Greenwald, Glen. "Collect It All." No Place to Hide: Edward Snowden, the NSA, and the U.S. Surveillance State. New York: Metropolitan Books- Henry Holt and Company, LLC, 2014. Page 92. Print.

17^ Greenwald, Glen. "Collect It All." No Place to Hide: Edward Snowden, the NSA, and the U.S. Surveillance State. New York: Metropolitan Books- Henry Holt and Company, LLC, 2014. Page 101. Print.

18^ Marmura, Stephen. "Security vs Privacy." Surveillance, Privacy, and the Globalization of Personal Information: International Comparisons. Ed. Elia Zureik, L. Lynda Harling Stalker, Emily Smith, David Lyon, and Yolande E. Chan. Quebec, Canada: McGill-Queen's UP, 2010. Pages 110-125. Print.

19^ Mascolo, George, and Ben Scott. "Wilson Center | Independent Research, Open Dialogue & Actionable Ideas." Wilson Center | Independent Research, Open Dialogue & Actionable Ideas. New American Foundation, 1 Oct. 2013. Web. 11 Dec. 2014. .

20^ Greenwald, Glen. "Collect It All." No Place to Hide: Edward Snowden, the NSA, and the U.S. Surveillance State. New York: Metropolitan Books- Henry Holt and Company, LLC, 2014. Page 126. Print.

21^ Lee, Timothy B. "Here's Everything We Know About PRISM to Date." The Washington Post 12 June 2013. The Washington Post. Web. 10 Dec. 2014. .

22^ Greenwald, Glenn and Ewen MacAskill. "NSA Prism Program Taps in to Data of Apple, Google and Others." The Guardian. The Guardian and Media Limited, 7 June 2013. Web. 10 Dec. 2014. .

23^ "About the ACLU." American Civil Liberties Union. ACLU, Web. 7 Dec. 2014.

24^ Greenwald, Glen. "Collect It All." No Place to Hide: Edward Snowden, the NSA, and the U.S. Surveillance State. New York: Metropolitan Books- Henry Holt and Company, LLC, 2014. Page 133. Print.

25^ "About the ACLU." American Civil Liberties Union. ACLU, Web. 7 Dec. 2014.

26^ "Surveillance Under the USA PATRIOT Act." American Civil Liberties Union. ACLU, 3 Apr. 2003. Web. 7 Dec. 2014.

27^ “Surveillance Under the FISA Amendment Act.” American Civil Liberties Union. ACLU, Web. 7 Dec. 2014.

28^ “Bringing Transparency to the FISA Court.” American Civil Liberties Union. ACLU, Web. 7 Dec. 2014.

29^ Williams, Peter. "Analysis: Why Edward Snowden Isn't a Whistleblower, Legally Speaking." NBC News. NBC News, 18 June 2013. Web. 8 Dec. 2014. .

30^ "Congress Strengthens Whistleblower Protections for Federal Employees." American Bar Association. 1 Nov. 2012. Web. 8 Dec. 2014. .

31^ Kessler, Glenn. "Edward Snowden's Claim That He Had 'no Proper Channels' for Protection as a Whistleblower." The Washington Post 12 Mar. 2014. The Washington Post. Web. 8 Dec. 2014. .

32^ Welna, David. "Before Snowden: The Whistleblowers Who Tried To Lift The Veil." NPR. NPR, 20 July 2014. Web. 14 Dec. 2014. .

33^ Kessler, Glenn. "Edward Snowden's Claim That He Had 'No Proper Channels' for Protection as a Whistleblower." The Washington Post 12 Mar. 2014. The Washington Post. Web. 8 Dec. 2014. .

34^ Welna, David. "Before Snowden: The Whistleblowers Who Tried To Lift The Veil." NPR. NPR, 20 July 2014. Web. 14 Dec. 2014. .

35^ Greenwald, Glen. "Collect It All." No Place to Hide: Edward Snowden, the NSA, and the U.S. Surveillance State. New York: Metropolitan Books- Henry Holt and Company, LLC, 2014. Page 95. Print.

36^ Greenwald, Glen. "Collect It All." No Place to Hide: Edward Snowden, the NSA, and the U.S. Surveillance State. New York: Metropolitan Books- Henry Holt and Company, LLC, 2014. Page 209. Print.

37^ Greenwald, Glen. "Collect It All." No Place to Hide: Edward Snowden, the NSA, and the U.S. Surveillance State. New York: Metropolitan Books- Henry Holt and Company, LLC, 2014. Pages 90- 210 Print.

38^ Gellman, Barton, Julie Tate, and Ashkan Soltani. "Communication Breakdown." Washington Post. The Washington Post, 5 July 2014. Web. 18 Dec. 2014. .