Indiana University

One year later, IU experts reflect on life post-Snowden

  • July 3, 2014

FOR IMMEDIATE RELEASE

BLOOMINGTON, Ind. -- Last summer, the Guardian newspaper reported that Verizon was collecting the phone records of millions of customers because of a secret order approved by a secret court. The story was just the first in what would turn out to be a trove of stories based on documents leaked by former NSA contractor Edward Snowden.

Over the past year, the Snowden documents have served as a source for story after story that has dramatically expanded our understanding of surveillance and privacy. As the nation celebrates its independence this weekend, two professors from the IU Maurer School of Law and Center for Applied Cybersecurity Research -- David P. Fidler, the James Louis Calamaras Professor of Law; and Fred H. Cate, Distinguished Professor and C. Ben Dutton Professor of Law -- reflect on the impact of the Snowden disclosures and what we’ve learned since.

Our oversight systems aren’t working. "Snowden’s disclosures have been widely regarded to indicate some failing by the National Security Agency, but the far more significant failures appear to have been in the Foreign Intelligence Surveillance Court and other oversight systems," Cate said. "There is no evidence this has changed. Despite widespread calls for reform of the FISC, Congress has yet to implement any, and the members of the court have publicly opposed changes. Historically, we have relied on a separation of powers to provide effective oversight of government activities. In the case of NSA surveillance, that oversight was largely the responsibility of the Foreign Intelligence Surveillance Court. However, the judges of the FISC substantially rewrote the law -- interpreting language authorizing the court to allow surveillance only if ‘relevant to an authorized investigation’ to permit the routine collection of data about all telephone calls made in the U.S.”

The leaks have harmed foreign policy and exposed American hypocrisy. Snowden's disclosures have damaged the global credibility of the U.S. on cyberspace and cybersecurity issues, according to Fidler. "The world watched the champion of 'Internet freedom' embroiled in domestic controversies about surveillance of Americans, operations of a secret court and technological innovation challenging constitutional protections," he said. "Snowden's leaks angered allied and friendly countries because the leaks revealed the extent of U.S. espionage against them. Adversaries, especially China and Russia, benefited because the disclosures exposed gaps between U.S. rhetoric and practices concerning cyberspace and revealed U.S. intelligence capabilities. The reputations of, and global opportunities for, U.S. technology companies suffered as foreign governments and consumers perceived such enterprises as compromised by NSA activities. Even worse, this cyber-related damage has accumulated while the U.S struggles with mounting crises related to Russia's annexation of Crimea and intervention in Ukraine; Chinese assertiveness in territorial disputes in Asia; vulnerabilities in Afghanistan as the U.S. withdraws; and the potential disintegration of Iraq. In short, the U.S. confronts eroding credibility and influence in cyberspace and geopolitical space, reinforcing fears the balance of power is shifting in ways detrimental to the ideas, interests and security of the U.S. and its allies."

The NSA is not focused on collecting data about threats to the United States, but rather on collecting all available data. Cate: "This seems clear from the wide variety of communications, social media, transactional, political and other data that we have learned over the past six months that the NSA seeks to collect, as well as from the explicit terms of its internal promotional and training material and the FISC’s orders concerning Verizon metadata. As new technologies and applications have resulted in the creation of new data, the NSA has demonstrated both the intent and the ability to collect them. This is the classic 'general search' that the architects of our Constitution sought to prohibit through the Fourth Amendment."

Our intelligence officials are not being honest with the public or with Congress. "The examples over the past year are legion, and include Director of National Intelligence James Clapper testifying before Congress that the NSA was not collecting data on U.S. persons when in fact it was collecting data on billions of U.S. person calls every day (a statement he later explained as the 'least untruth' possible); NSA Director General Keith Alexander telling Fox News that the NSA does not 'hold data on U.S. citizens'; General Alexander telling the Reuters Cybersecurity Summit in 2013 that the 'great irony is we’re the only ones not spying on the American people'; and General Alexander’s own testimony before Congress in 2012, denying a Wired story claiming that the NSA was conducting surveillance on U.S. persons with the definitive statement: 'We’re not authorized to do it, nor do we do it.' There is no evidence this has changed and little reason to believe that it will since President Obama has refused to prosecute, dismiss or even reprimand any administration official for lying," Cate said.

Fidler can be reached at dfidler@indiana.edu or 812-855-6403. Cate is available by email at fcate@indiana.edu or 812-855-1161.

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