A mural of Edward Snowden in Manchester, England
This is the first article in a three-part series
June 5th marks three years since a government contractor working at the Central Intelligence Agency copied and published thousands of classified US security documents from the NSA. His name is Edward Snowden, a man now branded everything from a revolutionary to a traitor.
But on the anniversary of the leaks, it’s worth analysing what the impact of Snowden’s revelations has been. Especially considering Snowden committed espionage to raise awareness of objectionable surveillance practices, it’s important to consider whether, and to what extent, the legislation regulating surveillance has been affected.
The results of the analysis are a mixed bag.
Surveillance Reforms in the Land of the Free
In 2013 journalists like Glen Greenwald and Laura Poitras began releasing Snowden’s documents on NSA programs like PRISM, XKeyscore, and MYSTIC. The public outcry was substantial, and Americans across the country demanded change. The resulting reform efforts can be sorted into three groups: committee investigations, constitutional lawsuits, and legislation.
There have been three federal investigations, launched by the Privacy and Civil Liberties Oversight Board (PCLOB), President Obama’s Review Group on Intelligence and Communications Technologies, and the Senate Select Committee on Intelligence (SSCI).
The PCLOB issued two reports: the first called for an end to all bulk data collection, but the second backtracked, acknowledging it was sometimes warranted. Meanwhile the SSCI concluded that the NSA programs were legal, subsequently recommending Snowden’s prosecution and tougher measures against “insider threats”. The President’s Review Group likewise acknowledged the ongoing need for surveillance, but also renewed respect for privacy – a finding that sparked disagreement with the SSCI.
To ascertain whether these (diverging) recommendations had any impact, one needs to look at the progression of American surveillance laws thereafter.
Courts are one viable, if slow, mechanism for legal progression, so three years down the road it’s not surprising there’s still no new constitutional law on the issue. SCOTUS has agreed to hear arguments on the whether mass domestic surveillance infringes on the First Amendment, with a decision expected soon in both Klayman v Obama and ACLU v Clapper. So whether the information leaked by Snowden will affect constitutional change, and whether the investigation reports bear influence thereon, is yet to be determined.
Congress, by comparison, moves much quicker. Since 2013, over 30 acts of legislation curbing the NSA’s surveillance capabilities have been proposed.
One particularly popular proposal was the Amash Amendment, which planned to defund NSA’s analysis on collected surveillance data about Americans, as well as ban the practice of the agency demanding tech companies like Apple create backdoors for communications monitoring. In 2013 the Amash Amendment narrowly lost in the House of Representatives by 12 votes.
Out of the 30 proposed bills, the only one to actually pass was the 2015 so-called USA Freedom Act. The Act eliminated the NSA’s (and FBI’s) ability to collect bulk phone call data by modifying provisions in the expired 2001 Patriot Act. But the Freedom Act had to endure numerous revisions before passing in a hallmark victory for bipartisanship. Critics felt the revisions didn’t comply with the recommendations from PCLOB and Obama’s Review Board. The compromises were so substantial the bill’s original sponsors accused intelligence lobbyists of “watering it down”.
To summarize, the Snowden revelations caused an outpouring of investigations, civil liberty suits, and legislation proposals. But the recommendations of those investigations have been generally ignored, the civil suits are yet to be decided, and Congress has only managed to pass one unpopular bill.
Legislative Reform Around the World
Outside of the US, foreign legislative bodies have also faced mounting pressure to deter American surveillance. The pattern most states followed in responding to Snowden’s information has been to form an investigative committee and discuss legislative reforms, but ultimately to pass very few bills.
The Dutch, for instance, used their Review Committee on the Intelligence and Security Services (CTIVD) to launch an investigation into the Kingdom’s security bureaus. The CTIVD found the government, too, had partaken in the abuse of discretionary power vested in them by Parliament. However, no legislative reforms were enacted because existing privacy protections were deemed to be adequate. Switzerland, France, Canada, and the European Union have all acted similarly.
Two notable exceptions to this pattern are Brazil and Ecuador.
Brazil formed an investigative committee after it was revealed President Rousseff had been wiretapped. The findings helped Congress pass a bill called Marco Civil da Internet which, while not universally loved, did grant Brazil exclusive jurisdiction over internet surveillance on Brazilian citizens. The committee also granted federal protection to Guardian journalist Glen Greenwald.
Ecuador did not pass any sweeping surveillance reforms, but did decide to grant asylum to Snowden. The US threatened to end trade agreements with Ecuador during the asylum deliberations, to which Ecuador’s response was to unilaterally renounce the agreements and offer to fund human rights training for Obama – whose administration has prosecuted more whistleblowers than every other president in U.S. history combined.
The United Kingdom went a step in the other direction after Snowden’s leaks revealed that the British Government Communications Headquarters (GCHQ) conducted mass surveillance on its citizens and foreign allies as part of a larger deal about pooling resources with the NSA. The situation generated widespread outcry – spawning the #DontSpyOnUS Movement – but no significant legislative reforms have passed restricting GCHQ’s surveillance activities. In fact, the House of Commons is now set to vote on the Investigatory Powers Bill which authorizes even more surveillance power to the GCHQ by requiring telecommunication companies to “retain and hand over internet connection records.”
Then there’s Germany’s infamous “Bundestag inquiry”.
Snowden’s information revealed that the NSA had spied on German citizens and wiretapped top officials such as Chancellor Merkel for decades. The country took the usual route of forming an investigative committee (the UA), but that’s when things went sideways.
The UA discovered that, like Britain, Germany’s own intelligence agency (the BND) had monitored its citizens’ internet activities. Additionally, the UA revealed the BND had secretly shared that data with the NSA, and possibly the GCHQ, which resulted in the resignation of the head of the BND two months ago. Then the UA found a BND agent was selling information about the UA’s committee proceedings to the CIA – an accusation which the CIA didn’t bother denying. To add insult to injury, a second American spy was unearthed within the BND later that same year. As the Bundestag investigation is ongoing, the total legislative outcome is yet to be determined, but damaged US-German relations are already tangible.
Most states responded to Snowden’s information by investigating the impact on their nation and citizens, but as few enacted sweeping surveillance law reforms those investigations were largely symbolic. This was perhaps an intentional neutrality. After all, countries like the UK who were seen as maintaining the surveillance status quo alienated their citizens, while countries like Germany and Ecuador who upended the status quo alienated themselves from the US.
Forecasting the Future of Surveillance Law
In the coming years, states such as Germany, the UK, and the US will continue grappling with the contradicting values of security and privacy. If the last three years are any indication we can expect more of the same: official surveillance queries will remain numerous, but actual legislative reforms will be scarce. The position Supreme Courts across the world will take is anyone’s guess at this point.
That’s not to say Snowden’s impact has been negligible. The fact that he sparked such a rush for investigations – symbolic as many of them might have been – is tantamount to the public interest he garnered. Likewise, reformative bills like the USA Freedom Act and Brazil’s Marco Civil da Internet were far from perfect, but even these comprised reforms would have been impossible to enact without Snowden’s civil disobedience.
When compiling investigative recommendations that go unheard and political compromises that water legislation down, it’s tempting to find Snowden’s impact underwhelming. But when one accounts for the public outcry fueling these acts, and the countries ensuring their citizens’ privacy at the expense of their international relations, it’s clear Edward Snowden has left an indelible dent in surveillance law.
• • •
But legislative reform was only part of Snowden’s goal to bring awareness about surveillance. What about consumer behavior? Now that the extent of surveillance on digital lives is public knowledge, has internet behavior changed? Are consumers demanding products with better security?
Check back here for Part Two of this series, Snowden’s Impact: Public Response
Julia Airey is a graduate of the University College Roosevelt where she triple-majored in Law, Linguistics, and Geography.
Image Attribution: “Snowden Mural Manchester” by ajehals, licensed under CC BY-SA 2.0
