But the gap between spying on foreign companies and handing their commercial secrets to domestic ones is huge. And there is no evidence for it. The most likely explanation for this absence of evidence is that nothing of the kind is going on. Any programme of systematic intelligence sharing with the corporate sector would be simply too risky to contemplate (as well as being wrong). How would it be administered? Who would authorise the security clearances? How much information could be disclosed? And what about the competitors, who in litigious America would be likely to sue the government if they believed they were losing out on access to valuable information collected at taxpayers’ expense?
American companies do get plenty of help from their government. They can receive briefings from officials about political and economic conditions abroad (as do executives from any country with an effective foreign service). Favours may be given through indirect channels such as consulting firms, or by hiring recently retired officials from the intelligence community. Abuses do happen. But it is striking that none of the soi-disant whistleblowers from the NSA or elsewhere, and no conscience-stricken corporate executive anywhere, has given the slightest sign, hint or proof of any programme of state-sponsored commercial espionage, either in the Echelon era or now. By contrast, evidence abounds of such espionage by other countries, chiefly China but also, notably, France.
In assessing the effects of Snowden’s actions, it may help to imagine how the whole thing could have been done differently. The overwhelming evidence even from the cherry-picked documents released so far is that the NSA is a bureaucratic and rule-bound organisation. So the first thing that an employee or contractor should do when he encounters a breach in the rules is report it. The NSA, like GCHQ, has a system for this. In America, the Intelligence Community Whistleblower Protection Act of 1998 allows intelligence insiders to disclose classified information concerning a ‘serious or flagrant problem, abuse, [or] violation of law’ to members of congressional intelligence committees. They are obliged to exhaust other channels first, including the NSA’s inspector general and the attorney general.
Snowden did not do that, largely because no such serious problem, abuse or violation was taking place. As shown above, the NSA was acting within at least the letter of the law, under congressional and judicial oversight, in accordance with the instructions of an elected president. What Snowden claims as motivation was the trajectory—that a future government would abuse the collection programmes to create an Orwellian ‘surveillance state’ which individuals would be afraid to challenge for fear of drawing attention to themselves.
That is a political objection. So Snowden, even without disclosing classified information, could have approached the lawmakers, especially in the Senate, who have been publicly critical of what they see as the NSA’s excessive reach. He did not. He could have resigned from his job and applied for a job at one of the many think-tanks and campaigns which worry about privacy in the digital age. By providing stolen secrets he has certainly stimulated a far more intense public debate than mere assertions of an ex-employee would have done. But the quantity and quality of information stolen and published goes far beyond anything necessary to start a debate. It looks more like material for a global anti-American campaign.
Even without going through the legal channels available, Snowden could have made it easy for people to defend him as a genuine whistleblower. He could simply have taken and leaked the FISA court order showing that Verizon, the American mobile phone company, has to routinely hand over its customers’ phone records.[72] To be sure, this collection of meta-data is legal and the order was a routine renewal of a programme which has been going for years. But it was still shocking. People know that their phone companies can do this (and may be glad about it: it helps locate stolen mobile phones). They may be happy that police can analyse the data on a case-by-case basis—for example to find out who has been present at a crime scene. But there are reasonable grounds for worrying about a single government agency creating an automatic, perpetual, searchable warehouse for all such information.
A handful of other documents released by Snowden come into a similar category where a public interest defence would be plausible. If the NSA has indeed been deliberately promoting faulty encryption software, or tweaking industry standards, in order to make it easier to bug and snoop, that is a deplorable and flawed policy. A patriotic American might well try to spare the blushes of American companies who were put in an impossible position by a combination of warrants and gagging orders, while finding some material that illustrated the policy under which such measures were taken.
Had Snowden published such documents, he might well have been prosecuted. American criminal justice officials do take a literal and stern view of the law and (as I have pointed out above) this administration is particularly and deplorably heavy-handed when it comes to dealing with whistleblowers. But he would have had the strongest case for a public interest defence, or a pardon if convicted. He would have been able to say truthfully that he had sought to do the least possible damage to intelligence sources and methods, and to the economic interests of the United States, and had focused his disclosure on the secret aspect of the NSA’s activities which most Americans would find controversial. He could then have argued that any harm he did by breaching his oath of secrecy was outweighed by the public good. He might have faced prosecution and jail—but if he could prove that he had taken nothing else but a limited set of documents, whose publication was embarrassing but necessary and relevant, his defence, both in law and before public opinion, would have been stronger. But he didn’t.
In fact, his behaviour does not meet the most elementary tests for justifying whistleblowing. Rahul Sagar, a professor at Princeton, has defined these well in his new book Secrets and Leaks:[73] First, a whistleblower must have clear and convincing evidence of abuse. Second, releasing the information must not pose a disproportionate threat to public safety. Third, the information leaked must be as limited in scope and scale as possible. Snowden failed all three of these criteria. He has not shown systematic abuse, only secrecy and mistakes. He has harmed and weakened his country and its allies (indeed, for some Snowdenistas, this is a stated aim). He has stolen far more information than was necessary to make the case he purports to want to make. Why?
I have shown that the Snowden disclosures are heavily spun and damaging to American and allied interests in a way that goes far beyond the purported goals of promoting a debate about digital security. I have shown that this damage benefits Russia. I have shown that Snowden’s behaviour cannot be justified as whistleblowing. For these reasons alone, he and his allies deserve condemnation. But it is possible—though not proven—that something more sinister than mere naïveté and carelessness is afoot.
Chapter Five: Our Man in Hawaii
To see the suspicious features of the story, examine the facts, as far as they are known, about Snowden’s journey into and out of the world of intelligence. After incomplete formal education, he enlisted in the US Army but left after a few months—having broken his legs in an accident, he says. After joining the NSA as a security guard, he moved to Geneva to work for the CIA there, under the cover of an attaché at the American mission to the UN. This is a remarkably successful trajectory. Nobody has yet explained whether he displayed previously hidden talents, had served somewhere else to good effect, or benefited from powerful sponsors.
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