[Infowarrior] - Spying after Snowden: What's changed and what hasn't

[Richard Forno]

Spying after Snowden: What's changed and what hasn't

By Julian Hattem - 12/25/16 09:08 AM EST 27

http://thehill.com/policy/technology/310457-spying-after-snowden-whats-changed-and-what-hasnt

Over the last three and a half years, Edward Snowden has gone from an anonymous government contractor to a global celebrity made the subject of two major motion pictures.  

To some, he’s a martyr, forced to while away his time in Russia to avoid unfair charges from a U.S. government that was exposed by his actions. To others, he’s a traitor who gave up American secrets, endangered the lives of soldiers and then went running to the Kremlin for protection.

But for all of his cultural import, Snowden’s decision to leak thousands of classified documents has done little to change the way the United States conducts surveillance. 

Domestic intelligence agencies are more entrenched than ever despite reforms passed by Congress. In Europe, governments chose to expand spy powers after a series of terrorist attacks. 
From the beginning, Snowden insisted that he never set out to upend the law.  

“Remember, I didn’t want to change society,” Snowden told the Washington Post in December of 2013, shortly after being unmasked as the man who had leaked the huge cache of sensitive information

“I wanted to give society a chance to determine if it should change itself.”

In that regard, he’s certainly been successful.                                  

Snowden’s revelations made headlines for months and caused a diplomatic crisis for the Obama administration, which was forced to explain spying on foreign leaders such as German Chancellor Angela Merkel. Some portions of the Patriot Act briefly expired last summer, in the midst of a bitter fight among lawmakers over changes to the NSA. 

The dramatic leaks have also made a mark on popular culture.

Hollywood action movies now routinely feature an over-aggressive spying state. A fictionalized version of the former NSA contractor’s life story was released this summer, starring Joseph Gordon-Levitt and Shailene Woodley. A documentary about Snowden directed by one of the journalists who worked with him, “Citizenfour,” won an Academy Award last year.

In Silicon Valley, the impact of Snowden’s leaks has been deep and lasting.

Tech companies stood to lose billions of dollars over the leaks, which created global distrust in their services. In response, companies like Google and Facebook have taken a series of steps to protect and encrypt user data, even at the risk of angering government authorities.

Earlier this year, Apple refused to cooperate when the FBI sought access to the iPhone of one of the killers behind last December’s terrorist massacre in San Bernardino, Calif. It seems unlikely that Apple would have taken such a firm stand, and fought so hard in court, if the Snowden leaks hadn’t happened. 

“The fact that the most profitable corporation in the world was engaged in a high-profile public dispute with the FBI in a terrorism case is something that would’ve been unimaginable a few years ago,” said Ben Wizner, Snowden’s lawyer at the American Civil Liberties Union. 

“It’s fair to say that we’re living in a different world because of Snowden.”

Snowden’s critics argue the reaction to the leaks was overblown and fueled by misperceptions about how U.S. intelligence agencies operate.

“Effective programs for targeting foreign terror suspects were inaccurately portrayed as pervasive wiretapping operations to spy on American citizens and listen to their phone calls,” Rep. Devin Nunes (R-Calif.), the chairman of the House Intelligence Committee, said in a statement to The Hill. “Among some people, this perception led to increased suspicion of the intelligence community, which is unfortunate, since our intelligence professionals are doing really hard, important and sometimes dangerous work to prevent terror attacks.”

When it comes to U.S. law, Snowden’s leaks have barely registered at all, experts say.

“In terms of actual programmatic change, there’s been relatively little,” said Geoffrey Stone, a law professor at the University of Chicago.

Snowden’s leaks can be directly connected to only one new law, which ended the NSA’s bulk collection of Americans’ phone records, among other changes.

However, by requiring the NSA to go to private phone companies when seeking data, Congress likely ended up expanding the information available to the spy agency, as lawmakers such as Sen. Ted Cruz (R-Texas) have argued.

Under the previous system, the NSA reportedly had trouble acquiring records from cellphones. Now it is able to obtain them with a court order. The records detail the numbers involved in a phone call, when it occurred and how long it lasted, but do not include the content of the conversations.

Overseas, the legal response to Snowden has been more pronounced — although in some places, the movements have been to solidify government surveillance powers, not undo them. 

“Snowden’s disclosures, ironically, probably produced a more sustained legal effect overseas,” said Stephen Vladeck, a law professor at the University of Texas. 

“And that effect has been in both directions.”

Following Snowden's leaks, Europe’s top court ruled that the U.S. did not adequately protect the private data of EU citizens, forcing a prolonged negotiation with the U.S. over new rules that were finalized earlier  this year. 

But the United Kingdom's House of Commons this summer approved a controversial bill explicitly outlining powers for intelligence agencies, dubbed the “snooper’s charter.” In some cases, the bill gave clear authority for the government to continue programs it had already been running.

Next year, U.S. privacy activists are hoping Congress will refuse to reauthorize a more sweeping intelligence law, Section 702 of the 2008 update of the Foreign Intelligence Surveillance Act. The law authorizes more expansive internet surveillance operations, such as the NSA’s PRISM and Upstream data collection.

Legislative jockeying ahead of the 2017 deadline has already begun, but the momentum for reform appears to have stalled, at least temporarily. 

The issue of surveillance reform didn’t emerge at all in the presidential race.

And after twice approving symbolic measures to end alleged “backdoor” spying of Americans, the House this summer voted against making changes to the law, in a sign that renewed concerns about terrorism outweighed privacy fears.

“I believe most Americans have a good understanding of the threats we face today and that they support the intelligence community’s efforts to keep our service members safe and our homeland secure,” said Nunes, who lobbied his colleagues to oppose the measure to end backdoor spying.

Snowden himself remains in Russia, where he has sought asylum to avoid espionage charges in the U.S.

He appears regularly via satellite at privacy panels and conferences, and has reportedly raked in more than $200,000 in speaking fees over the last year. But his future remains uncertain. 

A brief publicity effort aimed at persuading Obama to grant him a pardon seems to have fizzled out. Despite suggestions by his lawyers that he could eventually be granted protection in Europe or elsewhere, he is stuck in Russia for the time being. 

“At least from a public discourse perspective, I think it’s very hard to overstate just what kind of impact Edward Snowden had,” Vladeck said.

“With regard to the law, I think the verdict is far more mixed.”

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It's better to burn out than fade away.