“The programs that [Edward] Snowden exposed were all legal programs,” said Jill Rhodes, a former government intelligence official, at the third day of the American Bar Association’s Annual Meeting in San Francisco. “He systematically stole classified data. … He is a thief, a traitor, a coward and, in my view, a spy.”
Cindy Cohn, legal director and general counsel for the Electronic Frontier Foundation, cautioned the audience to be wary of “shoot the messenger tactics.” She said that very little of what was revealed by Snowden, a former defense industry contractor who has been granted temporary asylum in Russia, was new. For example, some of the intelligence activities, such as telephone tracking, were cited by her organization in court filings as long ago as late 2006, she added.
The debate, she asserted, should be about “what is the government doing with our information,” and whether the sweeping nature of the data collection is a violation of the search and seizure clauses of the Fourth Amendment of the U.S. Constitution.
“This debate has not been welcomed. It has been forced,” she said, in reference to Rhodes’ suggestion that the intelligence community is supporting a national discourse on its intelligence-gathering role.
The program “NSA Surveillance Leaks: Facts and Fiction” was modeled after a program involving the ABA in June in Washington, D.C. Its timeliness was underscored on Friday when President Obama announced plans to overhaul key parts of the NSA’s surveillance programs. The changes would include a restructuring of the Foreign Intelligence Surveillance Court, which now oversees U.S. surveillance programs, to include an advocate for privacy concerns.
Harvey Rishikof, chair of the advisory committee of the ABA Standing Committee on Law and National Security, which sponsored the complimentary CLE program, thought the privacy advocate will serve in an ombudsman or inspector general role. A former senior policy adviser in the Office of the National Counterintelligence Executive, Rishikof said the core issue in these debates is that “we have entered into the world of Big Data” and the government’s role in monitoring “the electrical footprint you are all leaving.”
“To me, when I teach this,” said Rishikof, who is also a professor of law at Drexel University, “what is a reasonable or unreasonable search” is a challenging question.
Rhodes, co-editor of the new book The ABA Cybersecurity Handbook: A Resource for Attorneys, Law Firms, and Business Professionals took aim at the media in her criticism. She said the media was treating Snowden as a “whistleblower” and “hero.”
Gene Policinski, a former journalist and chief operating officer at the civics education-oriented Newseum Institute in Washington, D.C., replied that mainstream media largely was “carrying the opinion of others.” He noted that in today’s environment, with the explosion of bloggers, it is sometimes difficult to ascertain who is a journalist and should be included in the “media.”
In introducing the program, Jim McPherson, chair of the sponsoring standing committee, said the president’s announcement on Friday signals that this debate will continue for some time.