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THE
FOURTH AMENDMENT

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By Glen Greenwald

In the very first online conversation I had with Edward Snowden he told me he had only one fear about coming forward: that his revelations might be greeted with apathy and indifference, which would mean he had unraveled his life and risked imprisonment for nothing. To say that this fear has gone unrealized is to dramatically understate the case.

Indeed, the effects of this unfolding story have been far greater, more enduring, and more wide-ranging than we ever dreamed possible. It focused the world’s attention on the dangers of ubiquitous state surveillance and pervasive government secrecy. It triggered the first global debate about the value of individual privacy in the digital age and prompted challenges to America’s hegemonic control over the Internet. It changed the way people around the world viewed the reliability of any statements made by US officials and transformed relations between countries. It radically altered views about the proper role of journalism in relation to government power. And within the United states, it gave rise to an ideologically diverse, trans-partisan coalition pushing for meaningful reform of the surveillance state.

One episode in particular underscored the profound shifts brought about by Snowden’s revelations. Just a few weeks after my first Snowden- based article for The Guardian exposed the NSA’s bulk metadata collection, two members of Congress jointly introduced a bill to defund that NSA program. Remarkably, the bill’s two cosponsors were John Conyers, a Detroit liberal serving his twentieth term in the House, and Justin Amash, a conservative Tea Party member in only his second House term. It is hard to imagine two more different members of Congress, yet here they were, united in opposition to the NSA’s domestic spying. And their proposal quickly gained dozens of cosponsors across the entire ideological spectrum, from the most liberal to the most conservative and every- thing in between—a truly rare event in Washington. When the bill came up for a vote, the debate was televised on C-SPAN, and I watched it while chatting online with Snowden, who was also watching C-SPAN on his computer in Moscow. We were both amazed at what we saw. It was, I believe, the first time he truly appreciated the magnitude of what he had accomplished. One House member after another stood up to vehemently denounce the NSA program, scoffing at the idea that collecting data on the calls of every single American is necessary to stop terrorism. It was by far the most aggressive challenge to the national security state to emerge from Congress since the 9/11 attacks.

Until the Snowden revelations, it was simply inconceivable that any bill designed to gut a major national security program could receive more than a handful of votes. but the final vote tally on the Conyers-Amash bill shocked official washington: it failed by just a tiny margin, 205–217. Support for it was wholly bipartisan, with 111 democrats joining 94 republicans to vote for the bill. This discarding of traditional party-line divisions was as exciting to Snowden and me as the substantial support for reining in the NSA. Official washington depends upon blind tribalism engendered by rigid partisan warfare. If the red versus blue framework can be eroded, and then transcended, there is much more hope for policy making based on the actual interests of the citizenry.

Over the following months, as more and more NSA stories were published around the world, many pundits predicted that the public would lose interest in the subject. But, in fact, interest in the surveillance discussion only intensified, not just domestically but internationally. The events of a single week in december 2013—more than six months after my first report appeared in The Guardian—illustrate just how much Snowden’s disclosures continue to resonate and just how untenable the NSA’s position has become.

The week began with the dramatic opinion issued by US federal judge Richard Leon that the NSA metadata collection was likely to be found in violation of the Fourth Amendment to the US Constitution, denouncing it as “almost Owellian” in scope. As noted, the Bush-appointed jurist pointedly added that the government had not cited a single instance “in which analysis of the NSA’s bulk metadata collection” had stopped a terrorist attack. Just two days later, President Obama’s advisory panel, formed when the NSA scandal first broke, issued its 308-page report. That report, too, decisively rejected the NSA’s claims about the vital importance of its spying. “Our review suggests that the information contributed to terrorist investigations by the use of [the Patriot Act’s] section 215 telephony meta-data was not essential to preventing attacks,” the panel wrote, confirming that in not a single instance would the outcome have been different “without the section 215 telephony meta-data program.”
Meanwhile, outside the United States the NSA’s week was going no better. The UN general assembly unanimously voted in favor of a resolution—introduced by Germany and Brazil—affirming that online privacy is a fundamental human right, which one expert characterized as “a strong message to the United States that it’s time to reverse course and end NSA dragnet surveillance.” And on the same day, Brazil announced that it would not award a long-expected $4.5 billion contract for fighter jets to Us-based boeing but instead would purchase planes from the Swedish company Saab. Brazil’s outrage over the NSA’s spying on its leaders, its companies, and its citizenry was clearly a key factor in the surprise decision. “The NSA problem ruined it for the Americans,” a Brazilian government source told Reuters.

None of this is to say that the battle has been won. The security state is incredibly powerful, probably even more so than our highest elected officials, and it boasts a wide array of influential loyalists ready to defend it at all costs. so it is not surprising that it, too, has scored some victories. Two weeks after Judge Leon’s ruling, another federal judge, exploiting the memory of 9/11, declared the NSA program constitutional in a different case. European allies have backed away from their initial displays of anger, falling meekly in line with the United States, as they so often do. Support from the American public has also been inconstant: polls show that a majority of Americans, though they oppose the NSA programs that Snowden exposed, nonetheless want to see him prosecuted for those exposures. And top US officials have even begun arguing that not only Snowden himself, but also some of the journalists with whom he worked, including me, deserve prosecution and imprisonment.

Yet the supporters of the NSA have clearly been set back on their heels, and their arguments against reform have been increasingly flimsy. Defenders of suspicionless mass surveillance often insist, for example, that some spying is always necessary. But this is a straw man proposition; nobody disagrees with that. The alternative to mass surveillance is not the complete elimination of surveillance. It is, instead, targeted surveillance, aimed only at those for whom there is substantial evidence to believe they are engaged in real wrongdoing. Such targeted surveillance is far more likely to stop terrorist plots than the current “collect it all” approach, which drowns intelligence agencies in so much data that analysts cannot sift it effectively. And unlike indiscriminate mass surveillance, it is consistent with American constitutional values and basic precepts of western justice.
Indeed, in the aftermath of the surveillance abuse scandals uncovered by the Church Committee in the 1970s, it was precisely this principle— that the government must provide some evidence of probable wrongdoing or status as a foreign agent before it can listen in on a person’s conversations—which led to the establishment of the FISA court. Unfortunately, that court has been made into a mere rubber stamp, providing no meaningful judicial review to the government’s surveillance requests. But the essential idea is sound nonetheless, and shows a way forward. Converting the FISA court into a real judicial system, rather than the one-sided current setup in which only the government gets to state its case, would be a positive reform.

Such domestic legislative changes by themselves are unlikely to be sufficient for solving the surveillance problem because the national security state so often co-opts the entities meant to provide oversight. (As we have seen, for instance, the congressional intelligence committees have by now been thoroughly captured.) But these sorts of legislative changes can at least bolster the principle that indiscriminate mass surveillance has no place in a democracy ostensibly guided by constitutional guarantees of privacy.

Other steps, too, can be taken to reclaim online privacy and limit state surveillance. International efforts—currently being led by Germany and Brazil—to build new Internet infrastructure so that most network traffic no longer has to transit the United States could go a long way toward loosening the American grip on the Internet. And individuals also have a role to play in reclaiming their own online privacy. Refusing to use the services of tech companies that collaborate with the NSA and its allies will put pressure on those companies to stop such collaboration and will spur their competitors to devote themselves to privacy protections. Al- ready, a number of European tech companies are promoting their email and chat services as a superior alternative to offerings from Google and Facebook, trumpeting the fact that they do not—and will not—provide user data to the NSA.

Additionally, to prevent governments from intruding into personal communications and Internet use, all users should be adopting encryption and browsing-anonymity tools.
This is particularly important for people working in sensitive areas, such as journalists, lawyers, and human rights activists. And the technology community should continue developing more effective and user-friendly anonymity and encryption programs.
On all of these fronts, there is a great deal of work still to be done. but less than a year after I first met Snowden in Hong Kong, there is no question that his disclosures have already brought about fundamental, irreversible changes in many countries and many realms. And beyond the specifics of NSA reform, Snowden’s acts have also profoundly advanced the cause of government transparency and reform in general. He has created a model to inspire others, and future activists will likely follow in his footsteps, perfecting the methods he embraced.

The Obama administration, which has brought more prosecutions against leakers than all prior presidencies combined, has sought to create a climate of fear that would stifle any attempts at whistle-blowing. But Snowden has destroyed that template. He has managed to remain free, outside the grasp of the United States; what’s more, he has refused to remain in hiding but proudly came forward and identified himself. As a result, the public image of him is not a convict in orange jumpsuit and shackles, but an independent, articulate figure who can speak for himself, explaining what he did and why. It is no longer possible for the Us government to distract from the message simply by demonizing the messenger. There is a powerful lesson here for future whistle-blowers: speaking the truth does not have to destroy your life.

And for the rest of us, Snowden’s inspirational effect is no less profound. Quite simply, he has reminded everyone about the extraordinary ability of any human being to change the world. An ordinary person in all outward respects—raised by parents without particular wealth or power, lacking even a high school diploma, working as an obscure employee of a giant corporation—he has, through a single act of conscience, literally altered the course of history.

Even the most committed activists are often tempted to succumb to defeatism. The prevailing institutions seem too powerful to challenge; orthodoxies feel too entrenched to uproot; there are always many parties with a vested interest in maintaining the status quo. But it is human beings collectively, not a small number of elites working in secret, who can decide what kind of world we want to live in. Promoting the human capacity to reason and make decisions: that is the purpose of whistleblowing, of activism, of political journalism. And that’s what is happening now, thanks to the revelations brought about by Edward Snowden