There’s Something Missing; Maybe the NSA Can Find It
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No Place to Hide : Edward Snowden, the NSA, and the U.S. Surveillance State
author: Glenn Greenwald
publisher: Metropolitan Books
pub date: 05.13.2014
pp: 272
tags: Law , Nonfiction , Politics & Economics

Allegra L. Funsten on No Place to Hide : Edward Snowden, the NSA, and the U.S. Surveillance State

There’s Something Missing; Maybe the NSA Can Find It

May 28th, 2014 reset - +
Editor’s Note: Glenn Greenwald’s No Place to Hide — itself the subject of a publisher imposed news blackout until its publication date earlier this month — has reignited the controversy over the US government’s data collection surveillance programs first lit by the Snowden disclosures of last year. Now, as we publish this review of what was believed to be his “tell all” account of the NSA, it turns out Mr. Greenwald has even more to tell, announcing his intent to publish a list of U.S. citizens who have been spied on by the NSA. Click here. The shoes have not yet stopped dropping and we are in for more revelations concerning our government’s prying ways.
 
— Legal Affairs Editor Don Franzen
 

HOT ON THE HEELS of his controversial Pulitzer Prize, journalist Glenn Greenwald publishes No Place to Hide, an account of his role in Edward Snowden’s unauthorized disclosures. Last June, Greenwald revealed an order from the Foreign Intelligence Surveillance Court requiring Verizon to turn over to the National Security Agency (NSA) telephone records for hundreds of millions of Americans. In the year that followed, Greenwald published dozens of stories in The Guardian laying bare the web of surveillance at which the NSA sat center, based on information obtained and secreted by Snowden, an NSA contractor serving as a systems administrator to the agency.

No Place to Hide describes Snowden as a patriot, following his moral compass in deciding to take and reveal secrets. Following a short-lived stint in the Army, Snowden sought out employment with the government as a security guard because he “believed in the core goodness of the United States government.” Despite his lack of formal education — he is a high school dropout — Snowden soon advanced to a position as a technology expert and systems administrator for the CIA. There, he had tremendous access to information about practices that he thought pushed the boundaries of ethical, moral, and legal conduct. According to No Place to Hide, Snowden received little response from his superiors when he raised concerns about those practices. The book concludes that Snowden was morally obligated to act. In 2009, having decided to expose governmental abuses to the public, Snowden transferred to the NSA and began collecting top-secret documents about the agency’s surveillance activities.

In all, Snowden leaked to the press thousands of NSA documents never intended for the public’s eye, 90 percent of which were top secret, and many of which were prohibited from dissemination to even foreign allies.[1] Because of those unauthorized disclosures, we now know the following:

  • The NSA and the FBI have access to a significant portion of global internet communications because most internet traffic flows at some point through the United States.
     
  • The NSA conducted surveillance of embassies and diplomatic missions located on US soil.
     
  • The NSA has targeted individual computers with malware using fake Facebook servers and LinkedIn pages.
     
  • The NSA developed a keystroke logger designed to work even when the targeted computer is offline.
     
  • In 2009, the NSA and its British equivalent, the GCHQ, eavesdropped on political leaders attending the G20 summit, converting that intelligence into a negotiations advantage.
     
  • The NSA tapped German Chancellor Angela Merkel’s cellphone.
     

The NSA also collected information about or generated by millions of ordinary Americans. In addition to telephony data the NSA obtained from Verizon, the NSA collected email, videos, file transfers, instant messages, and telephone and internet metadata.[2] In aggregate, metadata — information about communications, such as time, date, length of a call, numbers dialed, “to” or “from” fields of an email — “can create a remarkably comprehensive picture of your life, your associations, and your activities, including some of your most intimate and private information.” 

In the aftermath of Snowden’s unauthorized disclosures, some commentators have questioned the harm of the NSA’s domestic activities.[3] No Place to Hide seeks to dispel the notion that law-abiding Americans have nothing to fear from pervasive surveillance. The book focuses primarily on the relationship between surveillance and democracy, arguing that freedom from surveillance is essential to the liberal democratic political system. According to Greenwald, surveillance allows existing power structures to become further entrenched by enforcing orthodoxies, compelling adherence, and suppressing dissent. Greenwald also warns that “once the citizenry acquiesces to a new power, believing that it does not affect them, it becomes institutionalized and legitimized and objection becomes impossible.” Surveillance erodes democracy by allowing the existing political order to quell challenges.

No Place to Hide also argues that pervasive surveillance constrains culture and social behavior, because self-definition and innovation demand privacy.[4] For Snowden, the internet provided such a place, because it was “a place unto itself that offered freedom, exploration, and the potential for intellectual growth and understanding.” The book notes that the internet has been a successful medium for creativity, because users can speak, act, and explore anonymously. But human behavior changes under scrutiny, and the studies that No Place to Hide cites suggest that people conform their conduct to established norms when they think they are being watched. The book therefore concludes that although pervasive surveillance could promote desirable behavior, its overwhelming effect is to constrain individual choice.

No Place to Hide focuses on the dangers of pervasive surveillance, but missing is discussion of the positive laws that appear to authorize many of the NSA’s activities. For example, the NSA collects the content of communications (like phone calls or emails) under Section 702 of the Foreign Intelligence Surveillance Act (FISA), which permits “the targeting of persons reasonably believed to be located outside the United States” for foreign intelligence purposes. FISA makes clear that the “incidental” collection of Americans’ communications will be acquired under lawful targeting of foreigners under Section 702. No Place to Hide makes little of this distinction. And although critics of the FISA Amendments Act have raised flags about the breadth of Section 702 since it was added to FISA in 2008, Congress reauthorized the act in 2012. What Snowden’s disclosures add to the picture are verification and detail about the NSA’s targeting and minimization procedures, which critics elsewhere have argued provide meaningless protection to American citizens.[5] For example, in conducting surveillance under Section 702, the NSA presumes individuals are non-US citizens in the absence of specific information otherwise.[6]

Greenwald tends to reduce thorny, open legal questions about security and privacy to simplistic statements about the NSA’s lawlessness. For example, although the phone metadata collection program has generated the most debate since the disclosures, there are strong constitutional arguments supporting the program, based on long-standing Supreme Court precedent that the warrant requirement of the Fourth Amendment does not protect non-content information.[7] Complicating this well-settled rule is the notion that non-content data may trigger the Fourth Amendment’s protections when aggregated,[8] although the Supreme Court has declined to recognize that theory thus far.[9] Critics have also challenged the metadata program on grounds that the program violates the text of Section 215 of the USA Patriot Act, arguing, for example, that dragnet surveillance of millions of Americans is not “relevant to an authorized investigation” because it is not connected to any specific investigation.[10] Addressing these legal questions only briefly,[11] No Place to Hide tends to analyze the NSA’s metadata collection program normatively, by discussing the threat it poses. As a result, No Place to Hide misses an important opportunity to show where laws and policies diverge. 

The story No Place to Hide tells about the modern national security apparatus is one of various institutions vying for power. Greenwald characterizes government agencies as rational actors, seeking to aggrandize their power. He notes that the 9/11 attacks created the perfect ecosystem for national security agencies, such as the NSA, to expand their roles. Similarly, the book argues, a number of companies have benefited from their ties and contracts with national security agencies. Greenwald argues that these institutions perpetuate fear in order to ensure continued access to government coffers.[12]

Greenwald saves some of his harshest words for the mainstream press, especially The New York Times and Washington Post. No Place to Hide generally characterizes the mainstream press as neutered and servile to the government, if not complicit in its abuses. The book asserts that the press’s “excessive closeness to the government, reverence for the institutions of the national security state, [and] routine exclusion of dissenting voices” compromise investigative reporting at the established papers. As evidence, Greenwald cites the decision by the editors of The New York Times to withhold, at the request of the Bush Administration, reporting by James Risen and Eric Lichtblau on the NSA’s warrantless wiretapping program for more than a year, allowing the program to continue unobstructed in the meantime. Greenwald argues that journalists, too, are complicit: “Most media stars are highly paid employees of conglomerates, no different than other such employees. Instead of selling banking services or financial instruments, they peddle media products to the public on behalf of that corporation” and “tend to be adept at pleasing rather than subverting institutional power.” As much a vehicle for excoriating the current state of journalism as the activities of the NSA, No Place to Hide suggests that the mainstream press inhibits democracy. The press can ensure government transparency and provide a check on overreach, but “only […] if journalists act adversarially to those who wield political power.” Freedom of speech is imperiled and conformity promoted, he adds, when journalists feel unwilling or unable to be unpopular.

Greenwald is not one to mince words, and at times his polemic comes across as unsubstantiated — albeit with intuitive appeal. Because of the depth of his knowledge — especially about investigative journalism and the substance of the disclosures themselves — No Place to Hide is a fascinating read that adds much to the debate on national security and privacy.

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[1] For a comprehensive list, see “A Catalog of the Snowden Revelations,” Lawfare, http://www.lawfareblog.com/catalog-of-the-snowden-revelations/#.UuApsico564 (last visited May 11, 2014).

[2] Barton Gellman & Laura Poitras, “U.S., British intelligence mining data from nine U.S. Internet companies in broad secret program,” Wash. Post (June 6, 2013), http://www.washingtonpost.com/investigations/us-intelligence-mining-data-from-nine-us-internet-companies-in-broad-secret-program/2013/06/06/3a0c0da8-cebf-11e2-8845-d970ccb04497_story.html

[3] No Place to Hide quotes Hendrik Hertzberg (the threat posed to civil liberties is “abstract, conjectural and unspecified”) and Ruth Marcus (“my metadata almost certainly hasn’t been scrutinized”) for this proposition.

[4] See, generally, Julie E. Cohen, What Privacy is For, 126 Harv. L. Rev. 1904 (2013).

[5] See, e.g., Rachel Levison-Waldman, “Letter to the Members of the Privacy and Civil Liberties Oversight Board” 2 (Mar. 14, 2014); Jameel Jaffer, Privacy and Civil Liberties Oversight Board Public Hearing on Section 702 of the FISA Amendments Act 20-26 (Mar. 19, 2014), available at http://justsecurity.org/wp-content/uploads/2014/03/PCLOB_FISA_Sect_702_Hearing_-_Jameel_Jaffer_Testimony_-_3-19-14.pdf (arguing also that the FISA Amendments Act is facially unconstitutional).

[6] Eric Holder, Jr., U.S. Dep’t of Justice, Minimization Procedures Used by the National Security Agency in Connection with Acquisitions of Foreign Intelligence Information Pursuant to Section 702 of the Foreign Intelligence Surveillance Act of 1978, as Amended 4 (2011), available at http://www.theguardian.com/world/interactive/2013/jun/20/exhibit-a-procedures-nsa-document.

[7] See Smith v. Maryland, 442 U.S. 735 (1979) (holding that a criminal suspect does not have a reasonable expectation of privacy in the numbers dialed from a telephone, because telephone users typically know the telephone company keeps records of those numbers for business purposes, and because those numbers constituted information the suspect voluntarily disclosed to the telephone company).

[8] Orin Kerr, “Metadata, the NSA, and the Fourth Amendment: A Constitutional Analysis of Collecting and Querying Call Records Databases,” the Volokh Conspiracy (Jul. 17, 2013), http://www.volokh.com/2013/07/17/metadata-the-nsa-and-the-fourth-amendment-a-constitutional-analysis-of-collecting-and-querying-call-records-databases/.

[9] See United States v. Jones, 132 S. Ct. 945 (2012).

[10] See, e.g., Laura Donohue, Metadata Collection: Statutory and Constitutional Considerations, Harv. J. of L. & Pub. Policy (forthcoming), available at http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2344774.

[11] At one point, Mr. Greenwald dispenses of constitutional analysis by noting that one federal district court judge has concluded that the NSA’s metadata collection activities are unconstitutional. That opinion has already been challenged by a second opinion concluding to the contrary.

[12] Greenwald states that the actual threat of al-Qaeda has been greatly exaggerated as a result of “far too many power factions with a vested interest in the fear of terrorism: the government, seeking justification for its actions; the surveillance and weapons industries, drowning in public funding; and the permanent power factions in Washington, committed to setting their priorities without real challenge.”

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Allegra Funsten is a Georgetown University Law Center graduate.

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