The NSA and FBI removed every US citizen of their constitutional right, to privacy. Edward Snowden informed the US citzen base on their constitutional rights being removed.
This lawsuit is the government saying it is illegal for any US citizen to inform all other citizens when the government removes their constitutational rights.
The SF86 form offers no leeway for moral objections. So in such a scenario, it would be better to not submit the SF86 form in the first place.
The only people I'm aware of that can publish classified information without punishment are journalists.
The issue is that people -- not sure whether it was OP, or you -- conflate what is moral with what is legal.
One person starts off with a moral premise: people should have free speech, or people should have the right to say what the government is doing.
Someone else responds with what is legal: the law applies to government curtailment of free speech, or there was a contract in place.
Laws should reflect values, not vice-versa. What is legal should not be confused with what is right.
Note: I am not taking a moral position myself here. I just wish the legal position would not short-circuit the debate about what the correct moral position ought to be.
Not that I'm arguing one way or another how that applies in this situation, though.
The way I see it, we acknowledge that sometimes a government can act outside of it's own boundaries in a repressive manner. That is why we help those who are fleeing persecution based on political activity.
Saying you can't push for change and run away when repression comes would mean that a lot of people I admire, including the Dalai Lama, are bad people. I disagree.
These are as illegal as civil disobedience (refusing to work with cops might be more legal in some countries). As to if they are more or less moral... what moral framework are we using to judge?
I'm pretty sure the Declaration of Independence (1776) was also unlawful as well...
Some do. See: secessionists or separatists. For historical examples, the English religious separatists who moved to Holland. Or the Confederates in the American Civil War.
To be clear, I'm not defending their position or arguing whether or not this is better than civil disobedience, but clearly there is a separatist/secessionist school of moral thought.
There may exist a moral argument, but it's pretty easy to disprove that argument: In Nazi Germany, this principle would leave one to just leave Nazi Germany, otherwise cooperating with the Nazis.
The principle you're proposing would have led to the demise of many more Jews during WW2.
That maybe has some implicit assumptions. If the entire populace of German adopted what you call the "principle", Germany would have fallen much faster and with less bloodshed.
Regardless...moral choices are usually pitted against other moral choices and that's part of what shapes our moral "fiber", for lack of better vocabulary. To do something or do nothing, both have risk analysis. Mostly, we do our best with what we have learned...which also greatly influences what we imagine for the future.
I suppose you're right, but I don't think the assumption that there won't be a mass exodus is a very unreasonable assumption. Many reasonable ethical principles would have prevented the Nazis from even coming into power if everyone in the country applied it. I think if you were in Nazi Germany and as the Third Reich came to power it would be unreasonable to choose an ethical strategy that only works if everyone applies it, since in the moment, everyone was clearly not applying an ethical strategy.
We do have the benefit of hindsight here, though.
> To do something or do nothing, both have risk analysis. Mostly, we do our best with what we have learned...which also greatly influences what we imagine for the future.
Agreed, ethics is very situational, which is why trying to find widely-applicable rules is often a wild goose chase.
And in the end it did not matter much. But one thing is for sure: they kept their conscience clean and that counts for something as well.
I'd have to disagree with you there.
I spent time in Israel and in Brooklyn, and I've personally met at least 3 Jews who were alive when I met them because of good Germans/Austrians who broke Nazi law to help them escape.
I think HN often concerns itself with whole populations because a lot of what we're talking about is public policy, and policies at large corporations, which do affect large populations. But the fact is that for most people, the ethical choices we get to make only touch a few people at a time.
https://en.wikipedia.org/wiki/Lawrence_Kohlberg's_stages_of_...
The parent comment is a textbook example of stage 4, "law and order". The moral framework behind civil disobedience is stage 5, "social contract".
That is to say that we all expect, whether it is justified or not from a philosophical perspective, that ought both exists and that it should be related to legality.
We're not dealing with an authoritarian state. Laws by democratic governments are supposed to be mutable.
It's possible say, that the laws haven't caught up to what we (as americans) consider moral. Or it's possible the laws themselves were driven by immoral actors. Or it's possible the law's were passed with good intentions but had side effects that were unforeseeable. Or it's just one big gray area -- which seems to be the case here.
People argue that Snowden's act was moral in the most absolute sense to inform the nation and expose the Government's secrets.
James Comey, someone I think to be of high moral standards, knew about the program [1] yet didn't release the information to the public. He refused to reauthorize the post 9/11 surveillance program -- going to extraordinary lengths to do so.
So what are we to do? Is it more moral to work within the system to change the laws, or to break them entirely?
[1] https://www.latimes.com/politics/la-na-pol-mueller-comey-ash...
Edited for clarity and succinctness.
The United States would not even exist without the latter. Imagine if the founding fathers had tried to "worked within the system" of British rule instead of carrying out what the latter would have considered an extraordinary act of treason.
Previous whistleblowers like Thomas Drake and Bill Binney tried to work within the system, and that didn't exactly go very well. Snowden learnt from their experiences that the only way to achieve any meaningful outcome was to break the law. I imagine if there had been a viable means for him to bring the issues to public attention legally he might have done so.
Technically they couldn't since the colonies were without representation in the British Parliament, so they really couldn't, could they?
> Previous whistleblowers like Thomas Drake and Bill Binney tried to work within the system...
Sure but the Obama administration still looks bad for their handling of those whistleblowers. Binney and Drake still look like heros. No one said that whistleblowing was for the faint of heart. Nor were there any guarantees about your livelihood if you report on your employer or customers.
The only whistleblower statute I've known to be effective has been around medicare fraud -- first because medicare fraud is in the tens of billions, and second the reportee get's a cut of any future settlement or judgement.
It's unclear what Snowden's legacy will be. Sure, he informed us that the government might have been doing illegal things under the cloak of secrecy. But he released a lot of information and he didn't even try to go through the legal whistleblower channels first.
If he had gone through whistleblower channels I think it would have been harder for the US to use the word "traitor" to describe him.
The only people I am aware of which published this were journalists, since day 0.
E: I see this is particularly in the context of his publishing his memoirs now after reading the filing. My apologies
Anyone that has not entered into a contractual agreement with the US to protect classified materials can publish classified materials. It's just that the professional journalists, already established with the large news organizations, are the only ones with the visibility and reputation to not get jailed, vanished, or discredited afterwards.
If you think the US won't break its own laws to protect its dirty secrets, you haven't seen enough leaks of its dirty secrets.
If you take your camera out, and point it at something happening in the street adjoining your home, and plan to post the story to YouTube, Twitter, Instagram, Facebook, your own web page, send to your local television station, insert into a blog or print book, or have any other form of intent to publish, then for the purposes of exercising your rights, you are in that moment a journalist.
There are no special rights that Clark Kent enjoys as a staff reporter that Peter Parker cannot invoke as an independent freelance photographer.
---
I believe that specifically, the NDAs in question have a clause requiring personnel who intend to publish books to allow the agency to perform a pre-print review, to ensure no accidental spillage of classified materials through publication. Due to the nature of the contracts, the sole arbiter of whether information is classified is the classifying authority, so even if something has been published internationally in a globally-recognized newspaper, and is now common knowledge to hundreds of thousands of people, the information is still classified until the authority declassifies it. Those subject to the NDAs are technically not even allowed to read that article in the newspaper, or that chapter of the book, unless they then immediately take steps to control the classified in it and report it to their security contact. Which is to say that you are supposed to wrap the newspaper or book up in an opaque cover and drop it off at your security office.
The actual security apparatus has evolved, but the legal framework is still very much from the 1950-1980 Cold War era, so if you do not do the patently ridiculous thing, you can be sued or prosecuted.
Snowden didn't give CIA, NSA, DIA, or whomever else he may have had NDAs with, the opportunity to edit his book before going to print, for obvious reasons, so he's in violation of the contracts. It is unlikely there is anything in there that has not already been published in newspapers. It seems like they're refusing to declassify information that can no longer seriously be considered secret, with the potential to cause harm to national interests, solely because as long as it remains classified, they can use the contracts to silence, suppress, or retaliate against the whistleblower.
There is no legal definition of "journalist" in this context.
The US Government took away citizens constitutional rights, and Snowden told everyone about it.
I like to think that even if Snowden is convicted of that, then that forces the US government to be convicted of wrong-doing also. i.e. you can't be convicted of telling secrets that aren't true.
Which is why we have a rule of law and a justice system, and not simply contracts.
POTUS can also do it.
Everyone has the right to publish classified information, unless they've signed an agreement not to. There's no Constitutional difference between journalists and non-journalists.
It just makes it a perfect candidate for jury nullification!
A prosecutor, given the option and knowledge of the situation, would never willingly have a person on the jury that knows they could totally disregard the criminality of the charges at hand.
Knowing that I could nullify does not in any way prevent me from properly concluding a verdict based on the laws that are in place.
It's only if I choose to actually nullify that I'm not doing jury duty properly, but the knowledge of nullification as far as I can understand in no way prevents me from doing jury duty properly.
Jury nullification gets its teeth from the principle of (no) double jeopardy: once a defendant in a criminal case is found not guilty of a charge, they cannot be re-tried on those same charges.
(There are an increasing number of loopholes, including of charges in another, or higher, jurisdictions, and/or on different charges.)
The prosecution has no right of appeal. The defence does.
This is not the case in a civil suit. Either party (plaintif, here, the US government, or defence, here, Snowden) may appeal an unfavourable decision, through courts of appeal or ultimately the Supreme Court.
Jury nullification specifically does not apply to this case.
Strictly, no.
This is not a criminal case, judging guilt for crime; it's a civil contracts case for injunction against profits, per the NDA.
And citizens not bound by the NDA, who happen into the information (as would be the case with numerous US-citizen reporters who've written on the Snowden stoy while including specifics of his information disclosures) are not enjoined. At least not in this case.
The NDA does make it remarkably difficult for anyone with specific insider knowledge to publish and profit by disclosure.
NB: I am a space alien cat, not a lawyer. I'm not defending any position, publication, or contract, or questions of possible criminal prosecution. Just clarifying what is at hand, and what language applies.
[0]: Whistleblower Protection Act of 1989 - https://en.wikipedia.org/wiki/Whistleblower_Protection_Act
Those laws are fundamentally illegal
Any law that allows the NSA carte blanche to observe my communication is a law authorizing unreasonable search and seizure, and is therefore unconstitutional.
Sec. 202. Authority to intercept wire, oral, and electronic communications relating to computer fraud and abuse offenses. [0]
Sec. 217. Interception of computer trespasser communications. [0]
"by striking ‘‘wire and oral’’ and inserting ‘‘wire, oral, and electronic’’"[0]
Allows federal agents to follow sophisticated terrorists trained to evade detection. For years, law enforcement has been able to use "roving wiretaps" to investigate ordinary crimes, including drug offenses and racketeering. A roving wiretap can be authorized by a federal judge to apply to a particular suspect, rather than a particular phone or communications device. Because international terrorists are sophisticated and trained to thwart surveillance by rapidly changing locations and communication devices such as cell phones, the Act authorized agents to seek court permission to use the same techniques in national security investigations to track terrorists.[1]
This was just a cursory look into the Act. To be fair, it looks like there is a judge involved but who knows how rigorous the approval procedure is. It didn't read to me as a 'carte blanche' approval, but again, it may be in the eye of the beholder of the agency/judge.
[0] https://www.govinfo.gov/content/pkg/BILLS-107hr3162enr/pdf/B...
https://en.wikipedia.org/wiki/Free_speech_zone
1st amendment ensures the entire US is a free speech zone.
The most fundamental responsibility of his job was to uphold the US constitution. His bosses deserve to be charged with treason, which is why they are working so hard to attack him.
There is no evidence of this.
In the absence of contrary evidence, we should take Snowden at his word because none of his releases have been discredited as fabrications and thats the only account we have of the situation.
That's a low bar. He didn't forge any of the documents he released. He did, however, repeatedly lie about what the documents contained and to corroborate hid interpretation, he wildly exaggerated what he was able to do while at the NSA.
None of his leaked documents showed that capability. People complain about Clapper for getting a question wrong about whether phone metadata collection collected data about Americans after a line of questioning about whether the NSA creates dossiers on Americans, and he rightfully should be held to a high standard in Congressional testimony, but Snowden just straight-up lied repeatedly.
If Snowden had attempted to follow the lawful procedure there would be evidence of it at the DoJ, the Senate Intelligence committee and Snowden himself would have evidence due to his correspondence with the DoJ and Senate Intelligence committee.
This lawsuit is not actually about publishing classified material, but about not giving the NSA a chance to read his book before it was published. Since that’s a contract interpretation issue, and since there’s a law specifically making this contract legal, and since it’s a civil lawsuit (e.g., he can’t go to jail because of this particular lawsuit), I believe the government has a very strong leg to stand on.
I’m not saying this is what the law should allow. But I don’t expect the court to rule this law unconstitutional.
Frankly, hundreds if not thousands of people within the NSA deserve to be charged with treason. I would be shocked if this actually happened, though.
You can invoke your constitutional rights as a citizen,but you don't get to enforce it on behalf of somebody else, nor do you as an individual, decide what action constitutes a violation.
CIA, NSA, Senators, all take this oath: “I, [name], do solemnly swear (or affirm) that I will support and defend the Constitution of the United States against all enemies, foreign and domestic; that I will bear true faith and allegiance to the same; that I take this obligation freely, without any mental reservation or purpose of evasion; and that I will well and faithfully discharge the duties of the office on which I am about to enter. So help me God.”
When did Snowden try to stop phone metadata collection from within?
> The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.
If your data has left your house, is it really your data, or is it Google's say?
Despite what the constitution says, human rights are not self evident, they must in fact be legalized.
"The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people."
To elaborate: when using the US Postal Service, only domestic "First Class Mail" and "Priority Mail" (these are different and distinct from standard mail) is protected and requires a probable cause warrant to open and inspect. Other types of mail, as well as all packages shipped through private companies like UPS and FedEx, do not require warrants and can be opened and inspected whenever the post office or UPS/FedEx feel like it. There isn't an expectation of privacy for these packages, and certainly no constitutional protection of it.
"The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized."
Probably the same way civil asset forfeiture does, somehow precedent became the supreme law of the land as opposed to the constitution.
(3)Sealed mail is mail that under postal laws and regulations is included within a class of mail maintained by the Postal Service for the transmission of letters sealed against inspection...
and
(4)Unsealed mail is mail that under postal laws or regulations is not included within a class of mail maintained by the Postal Service for the transmission of letters sealed against inspection....
https://www.law.cornell.edu/cfr/text/39/233.3
I would guess the justification is that 1) the potential for mischief is much lower with a letter vs. an item and 2) the unsealed categories are usually cheaper (periodicals, etc) and the Post Office should be able to verify that the mailed item really qualifies for the lower rate.
>Sealed mail includes: First-Class Mail; Priority Mail; Priority Mail Express;
Shipped packages ("things") can be (but aren't always) sent as First Class or Priority Mail, and thus would fall under the "sealed" category as well.
OTOH, you can also send normal letters (not periodicals or marketing material) as "standard mail" which would make them unsealed (I don't know why you would do this as opposed to sending it as First Class or Priority, but you can).
Basically, USPS provides a service where, regardless of what you are sending in most cases, you can choose whether or not you want it protected by the 4th amendment. The origins of this "choice" (and why it isn't the standard to always being protected) is where I am more confused. And when talking about parallels to electronic media, I think this is an important point, because if this is the case for physical mail, it also stands to reason that electronic media for some reason might not default to being protected by the 4th amendment, either.
As the text says, those first categories are INTENDED for sealed letters. Things shipped in those ways therefore retain the privacy protections of letters. You can put a (small) rock or whatever in there instead--that's your business--and if you do, the Post Office will never know because they're applying the letter-privacy standard and not looking inside.
The other categories are NOT INTENDED for letters. As a result, they don't get the protection intended for letters. You can, of course, try to send something confidential that way, but if it's exposed, that's on you.
You can put whatever you want in a priority mail envelope, but the size and weight limits are much more suited to a big document than an engine block.
People are just too good at rationalizing and not questioning "the way things are" even in the face of the obvious evidence and become quite upset when the elephant in the room is pointed out.
Just for example, by combining several data points, Skynet can infer that those people are acquainted and add that fact to the corpus about you both. You would never give a retailer a full dump of everyone in your address book, but it's pretty much given they know it.
You only have an expectation of privacy of the contents of the letter. You have no such expectation of anything on the envelope itself (e.g. sender/receiver address). The government contends that it only collects analogous metadata in transit, not the contents of the communication itself (although this is debatable).
It's possible that with FISA, everything under the so called warrantless wiretap program might be legal -- you just don't have access to prove it is.
I haven't seen the 9-0 Supreme Court decision that says that warrantless wiretapping is illegal. Maybe you can point it out to me?
The point isn't that I disagree with you on what should be legal or illegal, I very much agree with you.
The point is, unless something enters a court of law for ajudication, it's very much in the land of the political.
And there's a lot of darkness surrounding the FISA court, much of which cannot be challenged. Is it legal? It looks like the courts say it is.
https://www.reuters.com/article/us-usa-security-nsa/nsas-pho...
But in other surveillance cases, the supreme court has dismissed the cases.
If the webcam was already transmitting for a Skype call or whatever then you can argue over privacy in transit all you want but first you need the person to knowledgeably consent to starting the transmission.
If that goes into place, your data immediately becomes subject to these amendments. It does away with some of the legal grey area that surrounds data.
Facebook's social graph, for instance: is the fact that I am friends with someone on Facebook my property, their property, or Facebook's property? Or this conversation we're having on HN: you could argue that we each own our words, but the conversation itself (including contextual replies, quoted text, arguments responded to, etc.) is its own entity that doesn't make sense when individual posts are removed, and that's why HN has a time limit for deleting your posts. What about a crowd shot that has various other people in the background? Is it property of the photographer, the clearly-visible foreground subjects, or anyone who happens to appear in it? Does that mean someone who goes around tourist attractions photobombing people has a right to claim all your family photos?
Questions like these also partly explain why legislators are so reluctant to create law for such things.
The framers couldn’t’ve imagined the internet, and, despite that, what you say on the internet is protected by the first amendment as it is speech. Why would the fourth amendment be any different?
I was arguing that if you want to take an originalist view to the constitution, you’d need to give up your protection of speech online and in many other areas.
In 1789, "papers", being made of actual paper, were in transit for much longer in 1789 and there are absolutely draconian laws against destruction and obstruction of the mail.
For example, 18 USC § 1702, which prohibits "with design to obstruct the correspondence, or to pry into the business or secrets of another, or opens, secretes, embezzles, or destroys the same" also doesn't have a carve-out for governmental purposes.
Another question would be: would mail be protected without that law and just by the 4th amendment itself?
One doesn't even have to reach into the realms of tech not imagined at the founders time to find useful analogies.
Furthermore the idea that a document written hundreds of years ago can't be reinterpreted in the context of framers intentions and new reality is fundamentally broken.
It means you have to rewrite from scratch every century.
Prior to the American Revolution, Franklin had been the postmaster for the British Crown, establishing postal delivery routes throughout the colonies. In the early days, it was only official government communications that passed through the post, and it was “sealed against inspection”.
Later, when the mail could be used by citizens, carriers would regularly read others’ mail along their long routes for entertainment.
Franklin, eager to maintain the sanctity of the mail in a time of political upheaval, developed a set of regulations and affixed locks to postal carriers’ saddle bags. Franklin’s early regulations became part of the basis for privacy law, as did the Fourth Amendment rule about unreasonable searches, which the Framers certainly intended to cover postal mail."
source: https://slate.com/technology/2013/06/nsa-surveillance-why-th...
http://law2.umkc.edu/faculty/projects/ftrials/conlaw/rightof...
https://injury.findlaw.com/torts-and-personal-injuries/is-th...
Griswold v. Connecticut (1965) explicitly established the right to privacy. Justice Douglas’ opinion states that such a right exists within the “penumbras” and “emanations” of the constitution. As there is no explicitly enumerated right, strict constructionists may oppose this interpretation.
Katz v. United States (1967) established a two part test to determine whether an individual has a reasonable expectation of privacy in a given circumstance:
"first that a person have exhibited an actual (subjective) expectation of privacy and, second, that the expectation be one that society is prepared to recognize as 'reasonable.'"
Smith v. Maryland (1979) established the basis for the government’s claim that the data collection program is permitted. The case focuses on whether an individual has an expectation of privacy for metadata they willingly give up to a third party. The court found that a warrant is not required to collect such information.
While I applaud what Snowden did, the issue in this case is quite a bit different than what you have portrayed here. The issue is whether or not he violated the terms of his NDA. And of course he did, in a gigantic and very public way, and then admitted it and has given many speeches about doing it, wrote a book about it, and had a movie created portraying it.
Sadly, this is an open and shut case. I am not even sure why he would defend it though, as the case is a “Grenada” [1] and a judgment from a US court will have zero effect on him while living in Russia.
What gives the NSA the right to capture private data from other countries?
[ asking because i don't know ]
He can do whatever he wants but he has to suffer the consequences. Every state has secrets and employees with top clearances learn them by swearing to keep the secret. He can go to Congress or through the chain of command....or risk jail and financial ruin. Otherwise a CIA ex-chief could write a book and name all US spies in China or Russia...