Cyber surveillance: whistleblower Snowden’s defence underway

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Despite attempts by authorities to bring the National Security Agency contractor and whistleblower Edward Snowden to the United States to face criminal charges, at time of going to press, his whereabouts was unknown.

Snowden’s leaks describe in detail the US government’s PRISM programme, which carries out mass surveillance on the communications of US citizens with foreign nationals via major online service providers. A similar project by GCHQ in the UK is potentially even larger, according to documents. While the state’s powers to do so were emerging in the press earlier this year (see IBA Global Insight feature States of Surveillance), the extent of the actual activity has caused considerable controversy.

Lawyers suggest that the 30-year old IT worker has already taken steps to help his legal defence. Kathleen Clark, John S Lehmann Research Professor of Law at Washington University in St Louis, said that the video interview posted by The Guardian newspaper on 9 June could influence the jury pool in his favour before any trial began.

‘In some ways the video interview was a brilliant move,’ Clark said. ‘Snowden is clearly trying to go on a charm offensive by establishing the storyline about why he has done it, who he is, and that he is likeable and knowledgeable in some way.’

The US government has charged Snowden with theft of government property, unauthorised disclosure of intelligence information and espionage, the latter for releasing information relating to national defence that may cause injury to the US, or advantage to any foreign nation. Over the past few weeks, Snowden has leaked secret information alleging the NSA in the US and GCHQ in the UK have been involved in mass surveillance programmes involving the phone and email communications of ordinary citizens.



  ‘What Snowden’s real motive is may not be legally relevant to an eventual trial […] but the emotional perception of Snowden is significant ’

Kathleen Clark
John S Lehmann Research Professor of Law, Washington University, St Louis


Clark said that the US government had already joined the fight over Snowden’s credibility. US Secretary of State John Kerry branded Snowden ‘a traitor to his country’ for leaking the information. ‘What Snowden’s real motive is may not be legally relevant to an eventual trial,’ Clark said, ‘but the emotional perception of Snowden is significant.’ She said that the government had a track record of trying to systematically destroy the motives of previous whistleblowers.

General Keith Alexander, director of the NSA, told the rare public hearing that the PRISM programme – which is sanctioned by section 702 of Foreign Surveillance Act of 1978, Amendment Act of 2008 (FISAAA) – was critical to the ability of the intelligence agencies to defend the US. FBI deputy director Sean Joyce said FISAAA had helped the US to uncover and disrupt 50 terrorist plots and disrupt.

But critics remain unhappy that communications can be intercepted without a probable cause warrant, particularly since the Foreign Intelligence Surveillance Court conducts the oversight of the NSA’s programme in secret. Despite the high profile Snowden has given PRISM, commentators do not expect Congress to put pressure on the government to rein back the programme.

‘It is hard to see where you would get bi-partisan support for restricting government authority,’ Stephen Vladeck, a professor of law at American University. ‘Some people in Congress may make a lot of noise, but there is not a strong civil liberties caucus right now.’ He says that Congress’s view would be only likely to change if there were revelations that the NSA had been targeting US citizens in non-terrorist cases.

But the impact of the leaks is likely to be more extensive in Europe. The ability of US intelligence agencies to spy on communication between US and foreign companies is making business life more difficult. In Germany, for example, where the protection of data is partly regulated by works councils, legal contracts between US and German companies have run into problems.

‘There has been an immediate response from the German works councils on the matter of transferring data to the US,’ Christian Harmann, Counsel at the German law firm Gleiss Lutz, ‘because it would be accessible to US intelligence services.’ He says that this has thrown a spanner in the works of some business negotiations between US and German companies that would normally have been straight forward.

The revelations may also derail the timetable for making final amendments to the UK’s forthcoming Data Protection Regulation, which is scheduled for the end of June.  Anne Flanagan, Senior Lecturer of Communications Law at Queen Mary University – a group student member of the IBA – says that there has been intense lobbying by both US technology companies and governments to make the new regulations work better for their purposes. While she accepts that the original proposals would have been too prescriptive for business, she is concerned that the pendulum has now swung too far in the opposite direction.

‘The question is, have we stepped away from the fundamental level of protection that citizens had under the original directive and sacrificed those for business expedience?’ she said. ‘I have a real concern that the EU is moving away from those levels of protection and that worries me.’

Flanagan says that the decision-making process should slow down to give the legislators time to develop precise legal definitions, make sure that people’s privacy rights are not watered down and to make sensible derogations for business.